Federal Court of Australia

Rivas v Minister for Finance [2025] FCA 824

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed 28 February 2025 is dismissed.

2.    The applicant is to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

introduction

1    The applicant (Ms Adriana Rivas) seeks leave to appeal an interlocutory judgment dismissing an interlocutory application by which Ms Rivas sought disclosure of redacted material in a departmental document over which the first respondent (Minister) made a claim for legal professional privilege.

2    Ms Rivas contended on the interlocutory application that the Minister waived legal professional privilege by the disclosure of the unredacted portions of the document. The primary judge rejected that contention, finding that nothing about the continued maintenance of the claim arising from the redactions gave rise to any unfair inconsistency. That decision is not, for the reasons that follow, attended by doubt. The application for leave to appeal will be dismissed with costs.

relevant background

3    By a proceeding commenced on 27 September 2024, Ms Rivas seeks to challenge the determination of the Minister (acting on behalf of the second respondent, the Commonwealth Attorney-General) that she be surrendered to the Republic of Chile pursuant to s 22(2) of the Extradition Act 1988 (Cth).

4    On 28 October 2024, the Minister was ordered to serve Ms Rivas with a copy of the departmental brief (including attachments) for the determination, subject to any claims based on legal professional privilege or public interest immunity. The departmental brief was served in accordance with the orders. Of present relevance, the Minister claimed legal professional privilege over, and redacted parts of, “Attachment A” to the departmental brief, entitled “Departmental advice on the preconditions to and grounds for refusal for surrender” (Attachment A).

5    On 21 February 2025, the primary judge made the interlocutory judgment. In so doing, the primary judge found that Ms Rivas failed to establish that there was any relevant inconsistency, let alone unfair inconsistency, between the redacted and unredacted parts of Attachment A.

6    Ms Rivas does not put in issue that the primary judge correctly identified the applicable legal principles. Those principles, as summarised at [7] of the reasons for the interlocutory judgment (Reasons) are as follows:

(1)     Even if the Minister accepted the advice she was given as contained in the departmental advice, this in and of itself is insufficient to constitute waiver of legal professional privilege.

(2)    The use of legal advice to make an administrative decision is not necessarily inconsistent with maintaining the confidentiality of that advice.

(3)    Waiver will only occur to the extent “that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect”: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 (at 297 [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

(4)    Whether a limited disclosure of the existence and effect of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case; questions of waiver are matters of fact and degree: Osland (at 298–299 [49] per Gleeson CJ, Gummow, Heydon and Kiefel JJ).

7    Ms Rivas instead seeks to challenge the interlocutory judgment on the following proposed grounds:

Grounds of appeal

1.    The primary judge erred in failing to find that the disclosure of the conclusions of legal advice, and part of the reasoning on the same subject matter for those conclusions, was inconsistent with the assertion of privilege over the remaining reasoning (at [19]-[23] of the judgment);

2.    The primary judge erred in finding that such parts of the departmental brief as were disclosed did not already disclose legal advice provided to the Minister (at [17] of the judgment); and

3.    The primary judge erred by misapprehending the nature of the cases of both the applicant and the respondent, and in turn misapprehended the relevance of the material the subject of redactions for legal professional privilege to that case and the unfairness in its partial disclosure (at [24]-[30] of the judgment).

relevant principles

8    Leave to appeal from an interlocutory judgment is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The principles governing the grant of leave to appeal are well-established. There are two considerations. First, whether the primary judgment is attended with sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, assuming the decision is wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

9    Where, as here, the decision the subject of the application for leave involves an evaluative process but not the exercise of a discretion, no question arises as to the application of the principles stated in House v King (1936) 55 CLR 499. The correctness or otherwise of the decision is susceptible to only one answer: TerraCom Ltd v Australian Securities and Investments Commission [2022] FCAFC 151 at [30] (O’Callaghan, Jackson, and Halley JJ) citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [18] (Kiefel CJ), [55]-[56] (Gageler J), [85]-[87] and [117] (Nettle and Gordon JJ) and [154]-[155] (Edelman J).

10    In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 at [12], Tamberlin J explained the position thus (see also at [62] (Gyles J)):

While it is true that questions of fact and degree may be involved in determining whether the conduct or circumstances are such that waiver can be imputed, nevertheless, there is an underlying principle of law to be resolved as to what in law may or will constitute a waiver. In these circumstances, I do not consider that it can be said to be merely a question of fact and degree so that an appellate court cannot re-examine the matter and come to a different conclusion. …

    (Emphasis added)

primary judgment not attended by sufficient doubt

The whole of the departmental advice was not legal advice

11    Against that background, it is convenient to begin by a consideration of the second proposed ground of appeal. By that proposed ground, Ms Rivas contends that the primary judge erred in finding that “such parts of the departmental brief as were disclosed did not already disclose legal advice provided to the Minister”.

12    The contention cannot be sustained. Attachment A forms part of a Ministerial submission to be “noted” by the Minister in making her determination. As a review of the document makes plain, the primary judge aptly characterised it as a “record of departmental advice” over which legal professional privilege could not be “claimed in whole”. Indeed, Ms Rivas concedes as much by the acknowledgement in her written submissions that “narrow aspects of it are not entirely legal in nature”: cf, Kennedy v Wallace & Ors [2004] FCAFC 337; (2004) 142 FCR 185 at [158]-[159] (Allsop J).

13    In any event, the proposed ground of appeal is misconceived. Immediately following the passage of the Reasons referred to at [12] above, the primary judge goes on to make the following statement before considering the specific parts of Attachment A said by Ms Rivas to constitute waiver:

Needless to say, in accordance with the propositions identified above, the mere fact that legal advice is contained in the Ministerial submission is insufficient to constitute a waiver without the Court being satisfied by Ms Rivas that the continued maintenance of the present claim for privilege is inconsistent with the extent of the legal advice that has been disclosed.

(Emphasis added)

14    The question before the primary judge was one of waiver, not whether Attachment A was a document over which legal professional privilege could be claimed in whole. The second proposed ground of appeal is without merit.

No inconsistency arising from the disclosure of conclusions in Attachment A

15    Turning then to the first proposed ground of appeal. This proposed ground relates to the findings made by the primary judge with respect to two extracts in Attachment A dealing with, respectively, non-refoulement obligations (first extract) and double criminality (second extract).

First Extract

16    The first extract is as follows:

iv.    Departmental analysis

90.    Although Ms Rivas González’s representations do not explicitly allege that she is at risk of torture within the Chilean prison system, they do raise interrelated concerns which are relevant to your consideration of the risks of both torture and other harms. Ms Rivas González’s representations fall within your consideration of paragraph 22(3)(b) only insofar as they relate to a risk of torture of a kind recognised in de Bruyn. Accordingly, we address this aspect of the representations in this section. Aspects of the representations which relate to the risk of harm that may constitute cruel, inhuman or degrading treatment or punishment will be addressed below as part of the exercise of your general discretion under paragraph 22(3)(f) of the Act.

91.    We consider that, in order to determine whether or not there are substantial grounds for believing that Ms Rivas González would be in danger of being subjected to torture if surrendered to Chile, it is necessary to assess whether Australia’s non-refoulement obligations under the CAT are engaged with respect to Ms Rivas González as a matter of both domestic and international law.

92.    [REDACTED] [REDACTED] [REDACTED].

93.    [REDACTED] [REDACTED] [REDACTED].

…

108.    While Ms Rivas González has raised concerns that she might be particularly vulnerable, due to the political nature of the crimes with which she is charged, Chile has advised that Ms Rivas González will be housed in a purpose-built section of the prison, ‘Esperanza’, with other female inmates with chronic disease and of advanced age but who have been convicted of human rights violations (as opposed to being accused of such). Accordingly, Ms Rivas González will not be at personal risk under Article 1 of the CAT due to the political nature of her crimes, given she will be housed with others who have been convicted of the types of offences she is accused of.

109.    While there is no guarantee that Ms Rivas González will remain in that facility for the duration of her pre-trial detention, or if convicted, when considered in totality and at their highest, the described prison conditions in Chile are unlikely to meet the high threshold of torture (that is, causing severe pain or suffering, intentionally inflicted for a particular purpose and involving a public official). Instead, the conditions described may indicate generalised sub-standard prison management. Accordingly, the department does not consider that these issues reach either [REDACTED] [REDACTED] [REDACTED] or the ‘real chance’ test outlined in Francuziak to establish that Australia owes non-refoulement obligations to Ms Rivas González.

…

i.     Australia’s non-refoulement obligations under the ICCPR

178. As outlined above, Ms Rivas González has made a series of representations relating to prison conditions in Chile. For the reasons outlined at paragraphs [90] to [111] above, the department considers that these representations do not rise to the threshold of torture under the CAT or relevant domestic law for the purposes of paragraph 22(3)(b) of the Extradition Act (as set out by the Full Federal Court in de Bruyn).

17    By this proposed ground, Ms Rivas contends that the primary judge erred in failing to find that “the disclosure of the conclusions of legal advice” in [178] of the first extract “was inconsistent with the assertion of privilege over the remaining reasoning”. That contention is founded on the proposition that the words “for the reasons outlined at [90] to [111]” when read together with the balance of [178] comprise a disclosure of the “gist or conclusion” of the whole of the advice to which reference is made, including the reasons for the conclusion: cf, Bennett at [65].

18    That proposition cannot be sustained. The reference to “the reasons outlined at [90] to [111]” does no more than indicate that those paragraphs, a subset of which contain legal advice, form the basis of the department’s view at [178] that Ms Rivas’ representations did not meet the threshold of torture. The paragraph does not specifically mention “legal advice” or purport to state the legal advice in the redacted paragraphs, or disclose its substance or effect: cf, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12 at 18 (Rolfe J). No doubt the redacted legal advice was relevant to the conclusion expressed by the department at [178]. But it does not follow, and cannot be assumed, that the conclusion reflects that advice.

Second Extract

19    The second extract is as follows:

Departmental analysis

159.    The department does not agree with Ms Rivas González interpretation of the High Court’s decision in Zentai. Her representations appear to conflate the High Court’s strict approach to the definition of the ‘offence’ for which extradition was requested with an assessment of whether the double criminality requirement is met in Australia. [REDACTED] [REDACTED] [REDACTED].

160.    In Zentai, the dispute before the High Court turned on whether ‘it’ in Article 2(5)(a) of the Hungarian Treaty was a reference to the offence for which extradition was requested or the conduct constituting the offence. A majority of the High Court held that Article 2(5)(a) of the Hungarian Treaty referred to the relevant offence, not the conduct as alleged, and could not be satisfied by any other form of criminal liability arising from the conduct. Namely, the offence for which Mr Zentai was sought was a war crime offence which was not in existence in Hungary at the time of Mr Zentai’s alleged conduct. Accordingly, Article 2(5)(a) was not satisfied.

161.    In Ms Rivas González’s case, the offence of ‘aggravated kidnapping’ existed in Chile at the time of her alleged conduct and at the time when Chile presented her extradition request to Australia. [REDACTED] [REDACTED] [REDACTED].

162.    [REDACTED] [REDACTED] [REDACTED].

163.    In her representations, Ms Rivas González submits that her conduct was in ‘good faith’ as part of a government agency and thereby excluded within the meaning of kidnapping in under section 90A of the Crimes Act as it existed at the time.

[REDACTED] [REDACTED] [REDACTED].

164.    As outlined above, under the Extradition Act, dual criminality is considered at the surrender eligibility proceedings. The assessment by a magistrate at those proceedings is to determine whether the alleged conduct, based on the information contained in the extradition request, would constitute an equivalent offence or offences in Australia at the time an extradition request is received. The dual criminality requirement under paragraph 19(2)(c) of the Extradition Act is the same as the requirement of Article II(4)(b) of the Treaty.

165.    In this case, the NSW magistrate found that substantive dual criminality in relation to Ms Rivas González’s alleged conduct was satisfied on the basis of participation in a criminal group pursuant to section 93T of the NSW Crimes Act and relevant offences under the Commonwealth Criminal Code. His Honour independently concluded that dual criminality would also be met for the substantive offence of kidnapping under section 86 of the NSW Crimes Act. This meets the requirement under Article II(4)(b) of the Treaty.

166.    Therefore, Chile’s extradition request for Ms Rivas González contains sufficient information for dual criminality to be established both at the time of her alleged conduct and at the time the request was received. Ms Rivas González’s claims that there is insufficient evidence of her alleged offending is considered further at paragraphs [200] to [205], in relation to the general discretion to refuse extradition under paragraph 23(3)(f) of the Extradition Act.

167.    The department therefore considers you may be satisfied that, even if Article II(4) of the Treaty is considered as imposing a mandatory ground for refusal of extradition, Ms Rivas González’s alleged conduct would nonetheless meet the double criminality requirement pursuant to Article II(4) of the Treaty.

(Footnotes omitted)

20    Ms Rivas advances two contentions with respect to the second extract. First, that the primary judge erred in failing to find that the disclosure of “part of the reasoning” in each of [159], [161] and [163] “was inconsistent with the assertion of privilege over the remaining reasoning” in each of those paragraphs (intermediate conclusions). Second, that the primary judge erred in failing to find that “the disclosure of the conclusions of legal advice” in each of [166] and [167] “was inconsistent with the assertion of privilege over the remaining reasoning” (ultimate conclusions).

21    Neither contention can be sustained.

22    As to the intermediate conclusions, the unredacted material does not rise above departmental commentary about Ms Rivas’ representations ([159] and [163]) and the offences ([161]) the subject of the double criminality analysis. In each case, that commentary precedes the redacted legal advice. The unredacted passages do not specifically mention “legal advice” or refer to portions of the document containing redacted legal advice. There is no proper basis to characterise what is unredacted in those paragraphs as disclosing the “substance or gist or conclusion” of the legal advice that follows: cf, Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 2) [2020] FCA 1013 at [27] (Allsop CJ), citing Bennett at [65]-[66]. Again, while it might be supposed that the legal advice is relevant to the commentary that precedes it, it cannot be assumed that the preceding commentary reflects that advice.

23    As to the ultimate conclusions, it does not follow from the use of the word “therefore” in each of [166] and [167] that the departmental views expressed in those paragraphs is a statement of the legal advice in the redacted passages, or a disclosure of the substance or gist of that advice. At its height, that reference founds a construction that unspecified portions of the second extract informed the views there expressed as to the sufficiency of the information in the extradition request ([166]) and satisfaction of the double criminality requirement ([167]). Indeed, as the respondents point out, it is clear from a review of Attachment A that the “even if” conclusion in [167] is based on unredacted parts of the document dealing with the finding made by a magistrate under s 19(2)(c) of the Extradition Act.

24    The primary judge was correct in finding that there is no inconsistency in disclosing the unredacted, but not the redacted, portions of Attachment A. The first proposed ground of appeal is without merit.

No misapprehension of the case of the parties

25    The third proposed ground of appeal concerns Ms Rivas’ contention that there was an unfair inconsistency in releasing the unredacted, but not the redacted, parts of Attachment A: cf, Zentai v O’Connor (No 2) [2010] FCA 252; (2010) 183 FCR 180 at [141] (McKerracher J).

26    The primary judge, having found that there was no such inconsistency, went on to make some observations about the “artificiality of any argument based on unfairness”. In so doing, the primary judge outlined his understanding that an important aspect of Ms Rivas’ argument at the final hearing will concern double criminality. Specifically, whether the offence for which Ms Rivas’ extradition is requested was an offence in both Australia and Chile both at the time of the alleged contravention of Chilean law (in the 1970s) and at the time at which the request for extradition was submitted: Treaty on Extradition between Australia and the Republic of Chile [1996] ATS 7, Article II(4).

27    The primary judge outlined in this regard that:

28.    At the hearing, it will be contended on behalf of Ms Rivas that it was simply not open to conclude that the first of these conditions was made out, and that a jurisdictional error occurred by reason of the fact that the Minister, in making her decision, was satisfied this aspect of the double criminality requirement was met.

29.     As I further understand it, the position of the Minister at the hearing will be that the first element of the double criminality requirement is made out because the substantive offence of kidnapping under s 86 of the Crimes Act 1900 (NSW) was an offence “at the time the acts or omissions constituting the offence took place”.

28    And then went on to state:

30.    I do not propose to comment on the merits or otherwise of this argument. What matters for present purposes is that I do not accept the applicant’s repeated submission that there is any real unfairness in the Commonwealth resisting the applicant’s argument while continuing to maintain privilege in relation to whatever advice it obtained concerning this double criminality requirement. As a matter of objective fact, the cumulative requirements were either made out, or they were not made out, and I will hear argument concerning the existence or otherwise of that objective fact at the hearing.

    (Emphasis added)

29    Ms Rivas contends that the primary judge’s reference to “objective fact” is in error because the respondents’ case is that satisfaction of the cumulative requirements of Article II(4) of the Treaty “creates a subjective jurisdictional fact, upon which the Court may not simply decide as a matter of objective fact”: see also s 22(3)(e)(iii) of the Extradition Act. That asserted error is said to have infected the primary judge’s assessment of unfairness because he misapprehended the relevance of the redacted material.

30    The respondents submit, and I accept, that the reference to “objective fact” in the Reasons is not to be read as a reference to whether the Minister was satisfied of the double criminality requirement in s 22(3)(e)(iii) (which is subjective). Instead, it is to be understood as a reference to whether there was material before the Minister satisfying the double criminality requirement in that section. The latter question, as the primary judge identifies, will be ascertained at the final hearing “as a matter of objective fact”.

31    The third proposed ground of appeal is without merit.

no substantial injustice

32    It follows that the interlocutory judgment is not attended with sufficient doubt to warrant its reconsideration on appeal. Moreover, I am not satisfied that Ms Rivas would suffer substantial injustice if leave to appeal were refused, even supposing that the decision of the primary judge is wrong.

33    Assuming the interlocutory judgment was wrong, Ms Rivas argues that she would suffer a substantial injustice because her case involves a contention that the Minister misdirected herself in law with respect to the issue of double criminality and that case is “best apprehended through the legal advice she noted”. This ignores, however, that whether the Minister accepted and relied upon Attachment A in making the determination remains in issue. The departmental brief was not a statement of the Minister’s reasons: Reasons at [22]. Indeed, the Minister was not required to give reasons for the determination: Brock v Minister for Home Affairs [2010] FCA 1301 at [62]-[75] (Foster J).

34    But even accepting that the Minister did rely upon the redacted legal advice, if that reliance was sound, then this can only harm Ms Rivas’ case. If, on the other hand, the Minister’s reliance on the redacted legal advice was misplaced, for that to be of assistance to Ms Rivas it would still be for her to demonstrate that on all of the material before the Minister, it would not be open to her to be satisfied pursuant to s 22(3)(e)(iii) of the Extradition Act that the cumulative requirements of Article II(4) of the Treaty were made out: cf, Buck v Bavone [1976] HCA 24; (1975) 135 CLR 110 at 118-119 (Gibbs CJ). As the respondents outline, the material contained within the departmental brief was not confined to Attachment A, but included other material relevant to s 22(3)(e)(iii), namely the decision of Magistrate Stewart pursuant to s 19(2)(c) of the Extradition Act, the review of that decision by Abraham J (Rivas v Republic of Chile [2021] FCA 693) and the subsequent appeal to the Full Court (Rivas v Republic of Chile [2021] FCAFC 214).

35    As such, Ms Rivas has not established that substantial injustice will result if leave to appeal is refused.

conclusion

36    The application for leave to appeal is dismissed with costs.

Associate:    

Dated:    18 July 2025