FEDERAL COURT OF AUSTRALIA

Rivas v The Republic of Chile [2020] FCA 737

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 11 December 2019 and filed on 13 December 2019, be dismissed.

2.    The applicant to pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The first respondent, the Republic of Chile, has sought, pursuant to an extradition request presented to Australia, the extradition of the applicant to face prosecution in Chile for 7 counts of aggravated kidnapping, contrary to Article 141 No. 3 of the Criminal Code (Chile).

2    The following decisions have been made in the extradition process: first, the decision of the second respondent (the “respondent” for the purposes of this interlocutory decision), the Commonwealth Attorney-General, made on 26 October 2018, to issue a notice of receipt of the Extradition Request, pursuant to s 16 of the Extradition Act 1988 (Cth)(Extradition Act)(s 16 decision); and second, the decision of the third respondent, a Magistrate of the Australian Capital Territory, made on 5 December 2018, to issue an extradition arrest warrant for the applicant pursuant to s 12(1) of the Extradition Act (s 12 decision).

3    At the time of this application, the next stage in the extradition process is before a Magistrate of the State of New South Wales to determine the applicant’s eligibility for surrender to Chile pursuant to s 19 of the Extradition Act (s 19 proceedings). The applicant is currently remanded in custody pursuant to s 15 of the Extradition Act, pending the conducting of those proceedings: see the decision of this Court in related proceedings, dismissing an application for judicial review of the bail decision of a Magistrate of the State of New South Wales, Rivas v Republic of Chile [2019] FCA 1940.

4    On 13 December 2019, the applicant filed the current interlocutory application in which she seeks orders in the following terms:

1.    The Applicant seeks a copy of her file on extradition as it existed as between 2006 to June 2018, which to date the Attorney General has refused to release.

2.    Costs.

5    The submissions in support of the application did not identify the source of power relied on to make that order, which is addressed in more detail below.

6    For the reasons below, the application is refused.

History of the proceedings

7    The history of the extradition proceedings is relevant to assess the content and meaning of the applicant’s claim in this interlocutory application and provides the context in which the current application is made.

8    In the proceedings in this Court, commenced by originating application and statement of claim, the applicant purported to make numerous challenges to the extradition process, pursuant to s 39B of the Judiciary Act 1903 (Cth). The challenges were wide-ranging. The respondent sought orders that various paragraphs in the originating application be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) (Federal Court Rules); and that various paragraphs in the statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules. On 31 October 2019, the Court made orders, by consent, dismissing and striking out certain paragraphs of the applicant’s originating application and statement of claim, and ordered the applicant to file and serve an outline of the grounds on which review was sought of the s 16 decision and the s 12 decision.

9    On 11 November 2019, the applicant filed a document entitled “Outline of Grounds of Review”, which stated as follows (with any errors in the original):

1.    That the Request made 6 August 2018, enlivened the Treaty and the Extradition (Republic of Chile) Regulations being Statutory Rules 1996 No 402 (The "Treaty").

2.    As such the Request itself and any decision that was made required compliance with the Treaty.

3.    The Request was a subsequent Request relying on the same Offence.

4.    The Earlier Request or Requests had been refused or ought to be taken deemed to have been refused.

5.    As a Subsequent Request, it ought not to have been made and as such was made in breach of the Treaty and ought not have been considered at all by the decision makers as such causing the section 16 and 12 Decisions the subject of review to be a nullity by reason of the principles of legality, as the Request was made in violation and breach of Article XVI (Non bis in idam) and as such in breach of the Treaty and the Extradition (Republic of Chile) Regulations being Statutory Rules 1996 No 402. (The "Treaty").

6.    That the Second Respondent the Attorney General The Honourable Christian Porter on 26 October 2018 was acting outside of jurisdiction in issuing the section 16 notice, as it was not open to conclude that the applicant was an 'extraditable person' as defined in section 6 of the Act.

7.    That Louise Mary Dian Taylor Magistrate of the Australian Capital Territory acted without jurisdiction because the notice issued under section 16 of the Act by The Honourable Christian Porter was issued outside of jurisdiction and a nullity.

8.    That the Honourable Christian Porter acted outside of Jurisdiction in issuing the section 16 notice, by failing to give proper genuine and realistic consideration to the issue of whether the Applicant was accused of an offence in the Republic of Chile as between 12 May 1976 and Mid-January 1976 or at any other time and therefore was or was not an 'extraditable person· as defined in section 6 of the Act,-as the material in fact did not disclose an offence or offences nor an extradition offence.

9.    That the Honourable Christian Porter acted outside of jurisdiction in issuing the section notice as the Applicant was denied procedural fairness because the material before The Honourable Christian Porter did not fairly and accurately present the evidence and issues relevant to whether the Applicant was accused of an offence in Chile and therefore was or was not an 'extraditable person' as defined in section 6 of the Act.

10.    That, as between on or about 5 December 2018 and 19 February 2019 at least, The Honourable Christian Porter had a positive obligation to have regard to cancelling the warrant and issue a notice withdrawing the section 16 Notice, having regard to the positive obligation to consider the treaty and Extradition (Republic of Chile) Regulations being Statutory Rules 1996 No 402 (The "Treaty'') given the provisions of section 12(3) of the Act and section 11 of the Act that obliged Him to consider if in fact the Applicant could ever be surrendered by reason of the following: ·

a.    The Request was in Breach of Article XVI of the Treaty.

b.    The Applicant on the material as it formed part of the Request disclosed, that the Applicant had the benefit of the following objections under the Act and Treaty, namely those as they are at Article IV of the Extradition (Republic of Chile) Regulations being Statutory Rules 1996 No 402. (The" Treaty") and section 7 of the Act.

c.    That the dual criminality requirement as required at Article II (4) of the Treaty, could not be satisfied.

d.    That otherwise the material did not disclose a duly authenticated statement in writing setting out the conduct constituting the offence alleged or in fact the offence;

e.    That is so far as any conduct could be attributed to the Person (Rivas) that that conduct could not make out the offence alleged;

f.    That the conduct alleged could never constitute.an Extradition offence in Relations to Australia as at the time of the Request and as at the time of the alleged conduct.

11.     A declaration and or finding that The Attorney General The Honourable Christian Porter as between on or about 5 December 2018 and 12 February 2019 failed to exercise a decision making process as required of him under section 12(3) of Act and thereby in so doing failed to stop the extradition request process in circumstance that the material as available to Him called for such thereby the Applicant was denied procedural fairness because the material did on a fair and accurate assessment of it reveal that the Applicant could never be eligible for surrender and the Act at section 12(3) when read with section 11 and the Treaty provided an opportunity to stop the extradition process at that time.

12.    Costs

…

Claim for interlocutory relief

The Applicant also claims interlocutory relief:

1.    The Applicant seeks a copy of her file on extradition as it existed as between 2006 to June 2018, which to date the Attorney General has refused to release.

2.    Costs

10    On 13 December 2019, the applicant filed the current interlocutory application referred to above at paragraph [4]. The application is supported by affidavits of the applicant’s solicitor, Peter Tsintilas, affirmed on 11 December 2019 (First Tsintilas Affidavit), and 4 March 2020 (Second Tsintilas Affidavit).

11    The respondent opposes the interlocutory application, and relies on an affidavit of his solicitor, Lisa Hemingway, sworn on 20 December 2020 (Hemingway Affidavit) and a departmental submission regarding the exercise of powers under the Extradition Act in relation to the applicant, signed by the respondent on 26 October 2018 (Departmental Submission).

12    Following the filing of this application a significant amount of correspondence has been exchanged between the parties which provides important context to the arguments the applicant now seeks to make in support of her application for documents. The respondent outlined in his written submission relevant aspects of that correspondence and the applicant has not taken issue with that recitation. That correspondence forms part of the evidence on the application having been included in the Exhibits to the Hemingway Affidavit and the Second Tsintilas Affidavit.

13    Relevantly for present purposes, on 18 December 2019, in an attempt to resolve the application the Attorney-General proposed to the applicant the following:

To the extent it may assist the resolution of the interlocutory application, and assist with progressing the proceedings more generally, we advise the only decision ever made by the Attorney-General under the Extradition Act (or by any other Minister with responsibility for administering the Extradition Act) in respect of your client was the Section 16 Decision. Our client would be prepared to consent to an order being made for production of all Departmental Submissions made to the Attorney-General or any Justice Minister regarding the exercise of powers under the Extradition Act in relation to your client.

14    On 16 January 2020, the Attorney-General’s solicitors reiterated in correspondence that “we confirm that the only decision that has been made by the Attorney-General, or any other Minister administering the [Extradition Act], in relation to your client is the decision made on 28 October 2018 to issue a notice of receipt of the extradition request presented by the Republic of Chile on 6 August 2018”. The correspondence also reiterated that the Attorney-General would consent to an order requiring production of all departmental submissions made to him or any Minister administering the Extradition Act regarding the exercise of powers under the Extradition Act in relation to the applicant. On 21 January 2020, the Attorney-General’s solicitor confirmed that the Attorney-General’s proposal would include the time when Senator the Honourable George Brandis QC was Attorney-General.

15    On 3 February 2020, the Court made the following orders by consent:

1.    On or before 7 February 2020, the Second Respondent serve the Applicant with a copy of any departmental brief or submission to the Second Respondent or any Minister administering the Extradition Act 1988 (Cth) regarding the exercise of any powers under that Act in relation to the applicant.

2.    On or before 14 February 2020, the Applicant is to:

a.    advise the Second Respondent whether the balance of the Interlocutory Application filed on 13 December 2019 is pressed; and

b.    if so, file and serve an Amended Schedule of Documents sought.

3.    The balance of the Applicant’s interlocutory application filed on 13 December 2019 is stood over for hearing on 12 March 2020.

16    On 6 February 2020, the Attorney-General produced the Departmental Submission to the applicant’s solicitors. A copy of the Departmental Submission was also filed with the Court.

17    Thereafter further correspondence ensued, with the applicant claiming an entitlement to information additional to that contained in the Departmental Submission.

18    It is sufficient to refer to the correspondence from the Attorney-General’s solicitor to the applicant dated 7 February 2020 as it sets out the respondent’s positon to the further request, and the applicant’s response dated 9 February 2020.

19    On 7 February 2020, the Attorney-General’s solicitor responded to the applicant’s claim for further material in the following terms (emphasis in original):

As advised in our correspondence dated 18 December 2019 and 14 January 2020, the only decision that has been made by the Attorney-General, or any other Minister administering the [Extradition Act], in relation to your client is the decision made on 26 October 2018, pursuant to s 16 of the Act, to issue a notice of receipt of the extradition request presented by [Chile] on 6 August 2018. The Departmental Submission requested the Attorney-General make that decision, which the Attorney- General did, on 26 October 2018. As such, the Departmental Submission was provided in accordance with the Court’s order of 3 February 2020.

We understand that your client’s case is that an earlier extradition request was made by Chile which was refused by the Attorney-General (or ought to be taken deemed to be refused). To that end, we have provided all submissions that have been made in respect of your client to the Attorney-General, or any other Minister administering the Act, for any decision of any kind under the Extradition Act.

The Attorney-General has not delegated any decision-making power (or relevant decision-making power) under the Act. It follows that your client can be assured by this comprehensive response to the orders that no Minister (or delegate) has ever made a decision under the Act pertaining to your client, other than the decision made on 26 October 2018 to issue a notice of receipt of the extradition request presented by Chile on 6 August 2018.

On this basis, this provision of the Departmental Submission constitutes a complete answer to the agreed order for production and, in our view, answers the point your client seeks to agitate in her grounds of review.

We do not agree that any earlier correspondence or material from Chile is relevant to any of your client’s grounds of review. Additionally in this respect, we also note that s 50 of the Act makes communications between officers of the Attorney-General’s Department, on behalf of Australia, and officers of an extradition country on behalf of that country, are taken to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country in relation to those communications. To the extent your client presses for production of earlier correspondence or material, our position is that they are (i) irrelevant to your client’s grounds of review and, in any event, (ii) may be a privileged communication.

20    In response, on 9 February 2020, the applicant’s solicitors wrote to the Attorney-General’s solicitor stating (with any errors in the original):

The material as served by Chile reveals that in 2014 at least an extradition request was made.

There is public material that suggest that the then Attorney General had received such a request, namely the Honourable Mr George Brandis QC, AT as between 2013 and 2017.

In fact there were questions about it in Parliament they form part of the public record.

The inference is that such a request was made, as such there would be a brief there on and submissions.

Your suggestion that there was merely a dialogue as between the two states is not at all consistent with the document produced by Chile again as at 2018 and nor the Australian Public record.

We say there was either a refusal or a deemed refusal and as such given the treaty that is quite relevant.

There is no privilege and even if there was it has been waived.

Please advise if you intended to produce such request and any brief and submissions so created as at 2014 and at any time as between 2014 and 2017.

If not then take this letter as indication of our pressing the point and the documents we want are apparent from the exchange.

21    Although the interlocutory application was listed for hearing on 12 March 2020, on that day the applicant applied for an adjournment on the basis that her counsel was unable to attend as he was in another court. The Court was informed that counsel for the applicant had emailed chambers the previous evening requesting an adjournment, although that email was not received. A copy has since been provided which reflects an attempt to email chambers at 5.23 pm the preceding evening. In any event, that application for the adjournment made on 12 March 2020 was made by a barrister who had been briefed solely for the purpose of doing so, and therefore was not in any position to present any argument on the substantive interlocutory application. On that basis, the adjournment was granted and the applicant requested that an order be made to enable her to file further evidence and written submissions purportedly in reply to the respondent’s written submission, although counsel indicated that it was envisaged that further substantive submissions would be made. The applicant acknowledged that given the breadth of the further submission she intended to file, and the potential for further evidence, the respondent should be given time to file a written submission in response. At that time the matter was relisted for hearing on 27 April 2020 and, on that basis, the respondent did not anticipate a necessity to file further submissions as any response could be addressed at that hearing. However, given the change in circumstances as a result of Covid-19, after the applicant filed her further submissions and evidence, the respondent sought, and was granted, leave to file a written submission in reply.

22    Against that background the parties agreed for the interlocutory application to be determined on the papers.

Preliminary issue

23    As referred to above, neither the interlocutory application filed on 13 December 2019 nor the First Tsintilas Affidavit which was filed at that time in support of the application, identified the source of the Court’s power to order the production of the file sought. In a letter by the respondent’s solicitor dated 18 December 2019 this omission was drawn to the applicant’s attention. In that correspondence the respondent postulated that the application was an attempt to seek discovery and directed the applicant’s attention to the relevant Federal Court Rules, and the requirements therein for the making of such application: see Div 20.2. The applicant’s written submission did not address the issue. In reply to the respondent’s written submission which raised this issue, the applicant submitted that what she is seeking is discovery. I have assumed that to be an acknowledgment that this is an application for discovery. The requirements under the Federal Court Rules were not addressed. This is a rather unsatisfactory state of affairs.

24    Nonetheless, in the circumstances, as no point is taken by the respondent and there is no suggestion that the respondent is unaware of the basis on which the applicant is seeking the file, I proceed on the basis that this is an application for discovery.

The extradition process

25    Given the arguments raised by this application, it is necessary to consider the extradition process, and the judicial review application to which this discovery application relates. The respondent set out the extradition process and principles relevant to that process, to which the applicant has not taken issue.

26    The extradition process is described as involving four stages: Harris v Attorney-General (Commonwealth) [1994] FCA 621; (1994) 52 FCR 386 at 389 (Harris) per Beaumont, Einfeld and Foster JJ; Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [21] per Mortimer, Wigney and Lee JJ. First, the commencement of the extradition process (see ss 12 and 16); second, the arrest and remand or bail of a person (s 15); third, the determination of whether a person is eligible for surrender (see s 19, and a right of review and appeal to this Court under s 21); and fourth, the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered (see s 22).

27    Other than the appeal under s 21, the powers conferred are administrative: Director of Public Prosecutions of the Commonwealth v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 (Kainhofer) at 538 per Brennan CJ, Dawson and McHugh JJ.

28    As noted above, at the time of this application the extradition process relating to the applicant is at the stage that ss 12 and 16 are completed.

29    Section 12 is as follows:

12 Extradition arrest warrants

(1) Where:

(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and

(b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;

the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.

(2) The magistrate or Judge shall forthwith send to the Attorney-General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.

(3) Where:

(a) the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;

(b) the person has not been arrested under the warrant; and

(c) either:

(i) the Attorney-General decides not to give a notice under subsection 16(1) in relation to the person; or

(ii) the Attorney-General considers for any other reason that the warrant should be cancelled;

the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant.

(4) A notice given under subsection (3) is not a legislative instrument.

30    In Matson (Roger) v Keenan [2016] FCA 1549 at [31], Rangiah J described s 12 as follows:

Section 12 of the Act requires that the Magistrate be satisfied “on the basis of information given by affidavit” that the person is an extraditable person. If the Magistrate is so satisfied he or she “shall issue a warrant”. The Magistrate has no residential [sic – residual?] discretion to refuse to issue an arrest warrant. Therefore, the applicant’s ill health and allegations of dilatoriness in the prosecution were irrelevant to the Magistrate’s decision.

31    Section 16 is as follows:

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 or eligible Federal Circuit Court Judge, state that the request has been received.

Person must be extraditable person in relation to extradition country

(2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.

(3) As soon as practicable after the person is remanded under section 15 or the notice is given, 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.

(4) A notice given under subsection (1) is not a legislative instrument.

32    As to the application of s 16, in Matson v United States of America [2018] FCAFC 57; [2018] 260 FCR 187 (Matson No 2) at [92] Dowsett, Wigney and Bromwich JJ observed:

…Mr Matson’s challenge to the Minister’s decision under s 16 fails at a more fundamental level. That is because it is tolerably clear that issues concerning delay on the part of the country seeking extradition have little, if any, role to play at the s 16 stage of the extradition process. Nor is the Minister under any duty at the s 16 stage to investigate issues such as delay, or indeed any other issues that fall outside the matters that must be considered at the s 16 stage. Those matters are, essentially, whether an extradition request has been received from an extradition country, and whether the person whose extradition is sought is an extraditable person in relation to the extradition country. Matters such as delay are issues for consideration at later stages of the process.

And see Foster v Attorney General (1998) 158 ALR 394; (1997) 97 A Crim R 560 at 575 per Cooper J.

33    It is also appropriate to refer to what is involved in the remaining stages of the extradition process, although those stages occur after the decisions the subject of this application.

34    Section 19 involves a determination of eligibility for surrender, which is relevantly in the following terms:

19 Determination of eligibility for surrender

(1)    Where:

(a) a person is on remand under section 15;

(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 or eligible Federal Circuit Court Judge 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 or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate or Judge 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.

(2)    For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been produced to the magistrate or Judge;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents – those documents have been produced to the magistrate or Judge;

(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

35    In determining eligibility for surrender a magistrate or eligible Federal Circuit Court Judge is confined to considering the matters specified in ss 19(1) and (2) of the Extradition Act and cannot have regard to other matters falling outside the ambit of those sections: Kainhofer at 538 per Brennan CJ, Dawson and McHugh JJ. It is not the function of the magistrate or eligible Federal Circuit Court Judge hearing an application pursuant to s 19 to determine whether the Requesting State has met an obligation imposed under a treaty: Timar v Republic of Hungary [1999] FCA 1518 at [82] per Weinberg J citing Federal Republic of Germany v Parker (1998) 166 ALR 522; (1998) 84 FCR 323 at 339 per Ryan, Einfeld and Foster JJ and Harris at 412-3 per Beaumont, Einfeld and Foster JJ. Nor is it permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Extradition Act: Kainhofer at 538 per Brennan CJ, Dawson and McHugh JJ. Rather, it must proceed on the basis that, if the order of remand under s 15 and the s 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid: Kainhofer at 539 per Brennan CJ, Dawson and McHugh JJ.

36    The fourth stage of the extradition process appears in s 22 of the Extradition Act, which provides, inter alia, that after the person has been committed to prison or released on bail by order of a magistrate or eligible Federal Circuit Court Judge, the Attorney-General must determine whether the person “is to be surrendered”: s 22(2), and provides that the person is only to be surrendered if the Attorney-General is satisfied of certain specified matters and, “the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence”: s 22(3)(f).

37    Surrendering a person pursuant to s 22 of the Extradition Act gives effect to Australia’s treaty obligations: United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at [58] per Gleeson CJ, McHugh and Gummow JJ.

Consideration

38    This is an interlocutory application for discovery in relation to an application for judicial review.

39    The principles relevant to the consideration of such an application are well established.

40    The Court will not order discovery as a matter of course unless discovery is necessary for the determination of issues in the proceeding, and an applicant for an order for discovery bears the onus of satisfying the Court that the documents sought are necessary: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J citing Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426 at 436 per Lindgren J.

41    The principles that are relevant to an order for discovery in an application for judicial review are as summarised in Carmody v MacKellar [1996] FCA 791; (1996) 68 FCR 265 (Carmody) at 280 per Merkel J, as follows:

The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38:

1.    the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

2.    the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

3.    if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

4.    the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

5.    if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

42    These principles were accepted by the Full Court (Dowsett, Jacobson and Greenwood JJ) in Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255 at [108].

43    Against that background I turn to the application.

44    The applicant submitted that one basis for her challenge in the judicial review proceedings is that the extradition request was made in breach of the “Treaty and the Extradition (Republic of Chile) Regulations dated 12 December 1995 that commenced 13 January 1996”. The applicant relies on Article XVI of the Treaty on extradition between Australia and the Republic of Chile [1996] ATS 7; [1996] UNTSer 413 (the Treaty) which is in the following terms:

XVI

Non bis in idem

Once the extradition request has been ultimately refused, a new request may not be submitted for the same offence.

45    In essence, the applicant contends that s 11 of the Extradition Act, in conjunction with the Extradition (Republic of Chile) Regulations 1995 (Cth)(the Regulations), has “the effect of giving effect to [an extradition treaty] in Australian Domestic Law”; that the documents sought will establish that the applicant was the subject of an earlier extradition request made by Chile and what happened to that request; that the making of this request enlivened the Attorney-General’s power under s 16; that the absence of a s 16 notice in respect of that request indicates that the earlier request was refused within the terms of the Treaty; and consequently the ss 12 and 16 decisions in this case were unlawful.

46    Underlying those propositions are a number of factual and legal contentions: that on the material provided, and on the public record, there was an earlier extradition request made in relation to the applicant; the existence of that request and departmental submissions predating 2 August 2018 is not denied; that on receipt of the request there were only two options available to the then Attorney-General, to issue a s 16 notice or to refuse to do so; if no notice was issued, it must mean that the applicant was not an extraditable person in relation to the extradition country or the decision-maker refused to exercise his discretion for some other reason, and therefore a decision was made with the request being refused; Chile did nothing to review that decision and consequently the extradition request was “abandoned and as such ultimately refused”.

47    The respondent opposed the application raising three matters which are, it submitted, each a complete answer to the application. First, it submitted that the applicant’s case is that the documents sought are required to prove that there was a refusal to issue a s 16 notice in respect of an alleged earlier extradition request. The evidence however shows that no decision has been made by the Attorney-General or any other Minister or delegate under s 16 of the Extradition Act prior to the issue of the s 16 notice currently challenged. Second, the respondent submitted that in any event, even if there had been a decision not to issue a notice under s 16 of the Extradition Act, that is a decision not to commence the extradition process at all. It could never be an ultimate refusal of an extradition request of a kind that would engage Article XVI. Third, even if a Minister had made a decision ultimately refusing to extradite a person in a way that did engage Article XVI, the Treaty imposes a constraint only on the Requesting State and not on the Requested State. No modification of s 16 is involved. If the applicant has a remedy at all, it would need to be against the Republic of Chile under Chilean domestic law (as any constraint imposed by Article XVI falls only on Chile).

48    As a preliminary matter, the Second Tsintilas Affidavit includes material, in paragraphs [20] and [21] and Exhibits R and S, that contravenes the prohibition in s 16(3) of the Parliamentary Privileges Act 1987 (Cth)(Parliamentary Privileges Act), which is in the following terms:

16 Parliamentary privilege in court proceedings

…

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

…

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

49    The submission advanced by the applicant relies, in part, on parliamentary material to establish facts. In response to the submission that Parliamentary Privileges Act renders reliance on the material unlawful, the applicant merely asserted, without any elaboration, that the Parliamentary Privileges Act, “has no application here”. As the applicant advanced no argument in support of this bare assertion, and the applicant’s use of the material falls within the prohibition in s 16, I disregard that material. That said, as the respondent recognised, that material did not meaningfully add to the applicant’s argument. Given the reasons below, this material could not have affected the outcome.

50    The respondent’s submission in respect to the application for discovery should be accepted.

51    There are a number of factual and legal misconceptions which underpin this application.

52    The evidence establishes that the only decision made by the Attorney-General under the Extradition Act (or by any other Minister with responsibility for administering the Extradition Act) in respect of the applicant was the s 16 decision, which is the s 16 notice challenged in this case.

53    The evidence also establishes that the applicant has been provided with all submissions that have been made in respect of the applicant to the Attorney-General, or any other Minister administering the Extradition Act, for any decision of any kind under the Extradition Act.

54    It follows, without more, that even assuming an earlier extradition request was made, the applicant’s contention that the earlier extradition request was made by Chile and was refused by the Attorney-General (or ought to be taken to be deemed to have been refused), has no factual foundation. The applicant’s case then is based on a flawed foundation.

55    Before addressing the applicant’s submission as to the Treaty and its legal effect, it is appropriate to address some incorrect factual and legal assertions which underpin her submission.

56    First, assuming for the purposes of argument there was an earlier extradition request, the applicant’s submission that the Attorney-General has not denied that there are departmental submissions which predate 2 August 2018 is incorrect. Rather, as was submitted by the respondent, the evidence establishes that there was no departmental submission to any Minister in relation to the applicant concerning the exercise of any power under the Extradition Act prior to the submission (which has been provided to the applicant) leading to the currently-challenged s 16 notice.

57    Second, also incorrect is the applicant’s assertion that “[a]ll that is stated is there was no section 16 notice and as such there was no section 12 warrant issued. The real question [is], did a section 16 decision arise regardless”. As noted above, the evidence establishes the currently challenged s 16 notice was the only decision made under s 16 in relation to the applicant. It is not that no other notice was issued, rather, the evidence is that no Minister or delegate has made any decision of any kind under s 16. The Attorney-General has not delegated any decision-making power (or relevant decision-making power) under the Extradition Act.

58    Third, at the core of the applicant’s argument is the assertion that if no s 16 notice was issued in respect to an earlier application, it must mean that the person was not an extraditable person in relation to the extradition country or the Attorney-General or delegate refused to exercise their discretion for some other reason, and therefore a decision was made to refuse that prior extradition request. For the same reason as given above, this is also contrary to the evidence. Factually the submission is without foundation. As the respondent submitted, if the applicant is suggesting that the decision was made by someone without authority, that decision could not be an “ultimate refusal”.

59    Fourth, the applicant’s submission proceeds on the proposition that when a State sends a request for extradition to Australia only two options arise; to issue a s 16 notice or to refuse to do so. That is incorrect. The applicant does not explain the basis for her approach, rather it is merely asserted to be the position. Certainly, the applicant’s reference to the process spoken of in Harris, does not provide a basis for the submission.

60    There are other obvious possibilities that arise on receipt of such a request, including communicating with the Requesting State as to the sufficiency of the request that has been sent. The issues that may arise in making such applications are not without their complexity, with the Extradition Act providing specificity as to what must be provided to enable a request to be considered under the Extradition Act. Further correspondence may be necessary before the Requested State gets to the point of considering whether or not to commence its domestic extradition process, here the s 16 stage.

61    The Extradition Act recognises that communications between officers of the Attorney-General’s Department on behalf of Australia, and officers of an extradition country occur in relation to proceedings or contemplated proceedings (see for example, s 50 which provides that there is a solicitor-client relationship in relation to the communications between such officers), and as explained below at [70] the Treaty envisages that there will be situations where the information provided by the Requesting State is insufficient having regard to the requirements imposed on such a request, and if that occurs, even where it means that the extradition request is brought to an end, it does not prevent a further extradition request for the same offence: Article X(2).

62    Fifth, as noted above, the applicant’s reasoning is that from the failure to issue a s 16 notice it can be inferred there was a rejection of the prior extradition request and, as Chile did not challenge that decision, the earlier request lapsed or was abandoned. For the reasons above, the inference contended for is not open on the evidence. Added to that, a failure to commence any s 16 process, could not constitute an ultimate refusal of an extradition application. Moreover, the applicant’s reasoning is dependent on the earlier request lapsing, or having been abandoned. A request having lapsed or having been abandoned could not be an ultimate refusal of the request. A premise involved in that reasoning, that Chile did not challenge the decision, is also misconceived, as there was no decision to challenge. The reasoning underpinning the applicant’s argument is flawed.

63    It is necessary to address how the applicant submitted the documents sought (the extradition file) relate to the judicial review proceedings.

64    As noted above, the applicant’s submission on the substantive judicial review application, in part, is based on the assertion that the extradition request is made in breach of the Treaty and the Regulations. The applicant’s reply submissions contend that “the [f]irst [t]hing on receiving [an extradition] request that needs to be done is to determine if it's in fact a valid request,” and that a “request that is expressly prohibited by the Treaty, cannot be a valid request” and “as such section 16 is so modified by Article XVI”.

65    Given that the applicant contends that this aspect of her judicial review proceedings is the basis of her entitlement to the documents sought, it is necessary to address those contentions, which in turn, involves a consideration of the Treaty.

66    The Treaty is “given effect to” in Australian domestic law by operation of the Extradition Act and the regulations made pursuant to s 11 of the Extradition Act. Contrary to the applicant’s contention, reg 4 of the Regulations does not give the terms of the Treaty legislative force or incorporate them into Australian law: Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559 (Oates No 1) at [16] per Lindgren J citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J, 304 per Gaudron J and 315 per McHugh J; Winkler v Director of Public Prosecutions [1990] FCA 194; (1990) 25 FCR 79 at 90 per Wilcox and O'Loughlin JJ; Bollag v Attorney-General [1997] FCA 1146; (1997) 79 FCR 198 at 214-216 per Merkel J, affirmed in Oates v Attorney-General of the Commonwealth [2002] FCAFC 80; (2002) 118 FCR 544 at [20]-[22] per O’Loughlin and Whitlam JJ; Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133; (1987) 77 ALR 641 (Hempel) at 652 per French J; Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 (Barton) at 507 per Jacobs J.

67    Based on the applicant’s contention, the question arising on the substantive application is whether Article XVI of the Treaty, by operation of s 11 of the Extradition Act and reg 4 of the Regulations, modifies (by way of limitation, condition, qualification or exception) the powers conferred by s 16 of the Extradition Act on the Attorney-General to give notice of receipt of an extradition request: see Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 (Zentai)at [17] per French CJ.

68    In Zentai French CJ described the way in which regulations made pursuant to s 11 of the Extradition Act may apply in relation to a specified extradition country at [14]-[17] (footnotes omitted):

14. The duty and power of the Minister to make a determination pursuant to s 22(2) is qualified. By regulation made under s 11, the Act may apply in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to that country. Regulation 4 of the Regulations so applies the Act in relation to the Republic of Hungary. That application does not involve any broadening of the powers conferred by the Act.

15. The scheme of s 11 has its ancestry in the Extradition Act 1870 (UK). That Act empowered the Queen in Council to make Orders in Council that the Act applied to a particular foreign state. The Queen in Council was also empowered to limit the operation of that Act or make it subject to such conditions, exceptions and qualifications as might be deemed expedient. That flexibility was reflected in Australian extradition legislation. As this Court observed in Oates v Attorney-General (Cth):

"the legislation has always allowed for extradition arrangements with particular states to be subject to limitations, conditions, exceptions or qualifications seen as appropriate to the particular circumstances."

16. A limitation, condition, exception or qualification applied by operation of a regulation made under s 11 may have the effect that the surrender of the person in relation to the offence must be refused in certain circumstances. Section 22(3)(e) provides that in such a case the person is not to be surrendered in relation to the offence unless the Minister is satisfied that the circumstances do not exist. The disempowering circumstance said, by the respondent, to exist in this case is that the offence of "war crime" for which his extradition was sought was not an offence in Hungary at the time of the acts or omissions said to give rise to it.

17. The primary question in this appeal is whether the Minister committed a jurisdictional error by purporting to determine that the respondent is to be surrendered in circumstances in which a necessary condition for surrender, derived from Art 2.5 of the Treaty and, by operation of s 11 of the Act and reg 4 of the Regulations read with s 22(3)(e) of the Act, qualifying the powers conferred by the Act, had not been satisfied. It is necessary to consider the relevant terms of the Treaty and to do so in light of the rules of interpretation in the Vienna Convention on the Law of Treaties ("the Vienna Convention").

69    It is necessary to consider other aspects of the Treaty, apart from that relied on by the applicant, as a Treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty with a consideration of the text, object and purpose consistent with Article 31 of the Vienna Convention on the Laws of Treaties: Zentai at [18]-[19]; Oates at [43]; Commonwealth Minister for Justice v Adamas [2013] HCA 59; (2013) 253 CLR 43 at [32] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

70    The Treaty outlines extradition processes with a view to the surrender of accused or convicted persons. Article IV specifies the circumstances when “extradition shall not be granted”. To the extent that the same considerations are reflected in the terms of the Extradition Act, the article has no effect on domestic law. To the extent that it adds new constraints on extradition, these new constraints are considered by the Attorney-General at the s 22 stage of the process: see s 22(3)(e) of the Extradition Act. Article V identifies circumstances where extradition may be refused on a discretionary basis, which are also matters for the Attorney-General when exercising his statutory discretion under s 22(3)(e). Article IX states requirements for the form and content of extradition requests for the purposes of the Treaty. Article X addresses additional information. Relevantly, the Treaty recognises that there may be instances where a request or information provided in support of such request is inadequate, with the result that a person who has become the subject of an extradition process is released and the request is brought to an end. In such cases, release will not prevent further extradition for the same offence, and the Requesting State may submit a further request for the same offence and start the extradition process again: Article X(2). Article XV obliges the Requested State to inform the Requesting State of the decision on the extradition request, including reasons for the decision for the grant or refusal of the request. It is in that context that Article XVI addresses the circumstance where a Requested State has “ultimately refused” the extradition request.

71    A regulation made under s 11 applies the Extradition Act “subject to” the Treaty in the sense that it embodies only consequential modifications to the Extradition Act’s operation: Hempel at 143 per French J; Barton at 507 per Jacobs J.

72    The Treaty conferred no rights on the applicant. As Lindgren J observed in Oates No 1at [49]:

The first thing to be said about the Treaty is that it does not purport to give rights to [the person whose extradition was being sought], and, not being incorporated into Australian municipal law, it cannot do so.

73    A number of matters arise from that.

74    First, the applicant’s submission that s16 of the Extradition Act is modified by Article XVI so as to require that the first question to be addressed by the Attorney-General is whether the extradition request is a valid one, is not supported by the Treaty. Article XVI imposes a constraint only upon a Requesting State. Moreover, in so far as it appears to be suggested that the Treaty has modified the definition of “extradition request” in the Extradition Act so as to exclude requests that do not comply with the Treaty, that submission also has no foundation.

75    Section 16 is engaged “where the Attorney-General receives an extradition request” which is defined to mean “a request in writing by an extradition country for surrender of a person to the country”: s 5. As the respondent submitted, a request either meets this description, in which case it is an “extradition request” or it does not, in which case it is not an “extradition request” under the Extradition Act. It follows that s 16 is engaged by any request that meets the statutory definition and does not turn on any notion of a “valid” request or a request that complies with the Treaty. The statutory approach does not envisage any notion of “invalid requests”. Article XVI does not modify or limit the operation of s 16. It does not make it a mandatory consideration for the Attorney-General to inquire into and determine whether there had been an earlier ultimate refusal of a request in relation to the same individual and offence.

76    As referred to above at [32], Matson No 2 determined the limited ambit of mandatory considerations in s 16. As the respondent submitted, whether Chile complied with Article XVI is not a mandatory consideration at the s 16 stage.

77    Second, given that the evidence on this application is that no decision has ever been made under the Extradition Act in respect of any alleged earlier extradition request, it necessarily follows, as the respondent contended, there has never been the communication of any refusal under Article XV. I note that the respondent said that, while it was not necessary, he would not oppose the grant of leave for the applicant to issue a notice to produce limited to any document informing Chile of the decision on the alleged earlier extradition request as would have been required under Article XV (although such a notice to produce will, on the information before me, result in a nil response).

78    Third, aligned with that, it is unnecessary to decide whether the extradition process must run its course (that is, at the completion of the s 22 stage) before an extradition application could be “ultimately refused” within Article XVI, because on the evidence on this application, that issue simply does not arise. As the respondent contends, prior to the issue of this s 16 notice, the evidence is that no decision had been made by any authorised person at any of the four stages in respect to an alleged earlier request.

79    The applicant bears the onus of satisfying the Court that the documents sought by the order for discovery are necessary. The applicant’s submissions must be rejected. This application proceeded on a flawed factual and legal foundation. The evidence establishes that no decision has been made to refuse any earlier request because no ministerial decision has ever been made under the Extradition Act in respect of any such request. The application for discovery of the extradition file at best, is fishing.

Conclusion

80    For the reasons above, the applicant has not established that there is a basis to order discovery in the terms sought. The application is dismissed with costs.

Associate:

Dated:    29 May 2020