Dutton and Attorney-General's Department
[2000] AATA 360
•4 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 360
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1049
GENERAL ADMINISTRATIVE DIVISION )
Re EDWARD ISAAC DUTTON
Applicant
And ATTORNEY-GENERAL'S DEPARTMENT
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date4 May 2000
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the respondent with the direction that the applicant is entitled to access to documents described with reference to the numbers and groups appearing in the affidavit of Margaret Charlotte Jackson as follows: Group 1: 24, 26, 28, 48, 49, 62, 63 Group 2: 9, 13, 14, 15, 23, 25, 32, 33, 34, 53, 54, 55, 59, 60, 64, 67, 68, 70, 74, 82, 83, 84, 98, 105, 125, 126, 129, 135, 137, 138, 142, 144, 146, 147, 150, 152 Group 3: 21, 22 Group 7: 24, 25, 28
(Sgd) BJ McMahon
..............................................
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – Extradition Proceedings – Application for access to applicant's file – whether communications entitled to legal professional privilege – whether other exemptions established
Freedom of Information Act 1982 ss 33(1)(b), 37(2)(b), 40(1)(d), 41(1), 42
Extradition Act 1988
Grant v Downs (1976) 135 CLR 674
Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 168 ALR 123
Re Stolpe and Department of Foreign Affairs (1985) 9 ALD 104
Pasini v Vanstone (1999) FCA 1271
Re Rees and Australian Federal Police (1999) AATA 252
Re Proudfoot and Human Rights and Equal Opportunity Commission 16 AAR 411
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President)
This is an application to review a decision made under the Freedom of Information Act 1982. On 11 February 1999, the applicant, though his solicitors, requested "a copy of the documents which you hold which constitutes his file". The request was addressed to the Freedom Of Information Officer, the Attorney-General's Department.
Following some negotiations, 476 documents were identified as falling within the terms of the request. Of those, claims for exemption were made in respect of 162 documents either wholly or partially. In the course of the hearing, claims based on section 40(1)(d) were abandoned. These related to the documents described as group 8 documents in the affidavit of Margaret Charlotte Jackson, affirmed on 7 April 2000, filed on behalf of the respondent and were numbered 1, 2, 4, 20 and 130. It was alleged in the affidavit that these documents contained information as to the operational procedures of Interpol and that disclosure of this information could have a substantial adverse effect on the efficient operation of an agency. The claims were abandoned, I was told, because counsel for the respondent had concluded that Interpol was not an agency for the purpose of section 40.
This left a balance of 158 documents. Claims for partial exemption had been made under section 41(1) on the grounds that the information contained in the partial deletions involved unreasonable disclosure of personal information about another person. Mr Dutton accepted this and did not seek access to the claim to partially exempted portions of documents 115, 116, 117, 153, 154, 155, 156, 157 and 158. These nine documents should therefore be deducted from the 158 documents leaving a balance of 149 documents in dispute.
Of these, claims for exemption under section 42 were made in respect of 146 documents. It was alleged that the documents were exempt because they would be privileged from production in legal proceedings on the ground of legal professional privilege.
That term is defined extensively in sections 117-126 of the Evidence Act 1995 where it is referred to as "client legal privilege". I do not understand this statutory approach to be the legal professional privilege contemplated by section 42 of the Freedom of Information Act. This Tribunal, of course, is not bound by the rules of evidence and does not fall within the definition of "Federal Court" in the dictionary to the Evidence Act. A category of legal professional privilege continues to exist at common law and it is this privilege which I understand to be the subject of section 42 claims.
The test for legal professional privilege in that sense previously had regard to the purpose for which the documents were brought into existence. In Grant v Downs (1976) 135 CLR 674, a majority of the High Court held that legal professional privilege was confined to documents which were brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings. Their Honours held that a document which would, in any event, have been brought into existence for another purpose was not privileged from production after discovery on that ground. In recent times, the dissenting view of Barwick CJ has been adopted by the High Court. In Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 168 ALR 123, the Court held that the test now is to determine whether the documents contain communications made for the dominant purpose of obtaining legal advice or assistance, or for use in legal proceedings. Although privilege is loosely described in relation to documents, the High Court confirmed that in fact the privilege attaches to communications. Consequently, unless there is a communication there can be no claim for legal professional privilege. References to the Grant v Downs test in decisions must now be viewed in the light of the later High Court judgment.
There has been a good deal of litigation concerning attempts to secure Mr Dutton's extradition to the Republic of South Africa (RSA). The respondent's affidavit details the legal proceedings:
"The background to this application for access is that in 1995 the Republic of South Africa ("RSA") requested the provisional arrest of the Applicant for the purposes of extraditing him to RSA ("the first request").
The first request was governed by the Extradition Act 1988 and the Extradition (Commonwealth Countries) Regulations. The effect of the Regulations was to make the first request an evidence based request which meant that the supporting documents had to contain evidence on oath to establish a prima facie case in respect of each offence for which extradition was sought.
The Applicant was provisionally arrested in November 1995.
An extradition hearing under s.19 of the Extradition Act took place before Magistrate Syme in November 1996. On 29 November 1996 Magistrate Syme ordered the Applicant's release under s.19 after having found that he was not eligible to be returned to RSA.
RSA then sought a review of Magistrate Syme's decision under s.21 of the Extradition Act in the Federal Court of Australia ("the s.21 review application"). The s.21 review application came on for hearing before Justice Hill of the Federal Court.
In June 1997 Justice Hill delivered judgment in relation to a number of preliminary issues in connection with the s.21 review application. At this point the Applicant applied for leave to appeal to the Full Court of the Federal Court in respect of Justice Hill's judgment.
In January 1998 RSA made another request for the Applicant's extradition ("the second request"). On the 21st day of January 1998 the Minister for Justice, Senator Amanda Vanstone, issues a Section 16 Notice under the Extradition Act which directed a magistrate to conduct a s.19 hearing for the purposes of determining the Applicant's eligibility for surrender to RSA. At this time the application for leave to appeal to the Full Court of the Federal Court was still pending.
As a result of the receipt of the second request RSA withdrew its Application for Review in the Federal Court and consequently Justice Hill dismissed the s.21 review application. This had the effect of discontinuing the Applicant's application for leave to appeal to the Full Court of the Federal Court.
After the second request was received by AGD and following the issue of the Section 16 Notice referred to above officers of AGD instructed the Commonwealth Director of Public Prosecutions to obtain an arrest warrant in respect of the applicant under s.12 of the Extradition Act. The warrant was obtained and the Applicant was arrested on the 17th day of February 1998.
Following the Applicant's arrest in February 1998 the Applicant commenced proceedings in the Federal Court to prevent the second request from proceeding. These proceedings came on for hearing before Justice Madgwick of the Federal Court. The proceedings were subsequently withdrawn by consent of the parties.
Prior to the extradition hearing under s.19 of the Extradition Act being listed for hearing before a magistrate in the Local Court of New South Wales, the Applicant brought another application in the Federal Court challenging the second request as an abuse of process. The Applicant's application came on for hearing in June 1998 before Justice Burchett. Justice Burchett delivered judgment dismissing the application on the 7th day of January 1999.
The Applicant did not appeal the decision of Justice Burchett but in March 1999 filed fresh proceedings in the Federal Court challenging the second request as an abuse of process. These fresh proceedings were struck out by Justice Branson on the 23rd day of April 1999. The Applicant then appealed against the decision of Justice Branson. The Full Federal Court dismissed the Applicant's appeal on 22nd day of June 1999.
As a result of the various challenges in the Federal Court the extradition hearing under s.19 of the Extradition Act was adjourned from time to time until after the Full Court of the Federal Court dismissed the Applicant's appeal on the 22nd day of June 1999. On the 29th day of June 1999 the extradition hearing under s.19 commenced before Magistrate O'Shane of the Local Court in New South Wales. The extradition hearing is presently part heard."
Because the deponent was out of the country, and because a resumption of an extradition hearing under s19 of the Extradition Act 1988 was to take place within a few weeks, it was agreed by all parties that Ms Jackson should not be required for cross examination. The matter proceeded on the basis of her evidence as set out in the affidavit.
Mr Dutton contended that there were reasons for each of the forensic moves detailed by Ms Jackson and suggested that none of them reflected credit on the respondent or on RSA. I do not draw any inferences from the recital of facts appearing in the affidavit. I accept Ms Jackson's account as the bare bones of the litigation. It is not necessary for present purposes to proceed beyond that. The various cases are reported as RSA v Dutton (1997) 77 FCR 128 (Hill J), Dutton v RSA (1999) 84 FCR 291 (Burchett J), Dutton v RSA (1999) 162 ALR 625 (Branson J), and Dutton v RSA (1999) FCA 1016 (Full Court). Although reported under these titles, there were a number of other unidentified parties on the same side of the record as RSA in each of the cases.
Part II of the Extradition Act 1988 deals with the extradition of persons from Australia to extradition countries as defined. The first step is taken under section 12 where an application is made on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of the person. The magistrate must be satisfied on the basis of the evidence set out in an affidavit that the person is an extraditable person (as defined) in relation to the extradition country (as defined). If the magistrate is so satisfied then he or she is to issue a warrant for the arrest of the person and must send a report of the fact to the Attorney-General, together with a copy of the affidavit. The Attorney-General must then consider his or her position in relation to a notice to be given under section 16.
That notice is not to be given unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the requesting country and secondly, that if the conduct for which the surrender of the person is sought or equivalent conduct had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia. The Attorney-General must consider whether there is an extradition objection (as defined in section 7) before issuing his notice under section 16. Section 7 allows objections if the extradition offence is a political offence, or if the surrender of the person is sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality, or political opinions, or if the surrender of the person could cause prejudice by reason of that person's race, religion, nationality or political opinions, or if the conduct of the person in question would not have constituted an offence under ordinary criminal law, even though it may have constituted an offence under military law of the requesting country, or if the person has been acquitted or pardoned by a competent Tribunal or Authority. The Attorney-General must consider all these potential grounds for objection and any objections made in reliance upon section 7 before he decides to give a notice under section 16.
Once that notice is given, then proceedings are held before a magistrate pursuant to section 19. The magistrate is to determine whether the person is eligible for surrender in relation to the extradition offence for which his surrender is sought. The section sets out the criteria to be observed by the magistrate in coming to his or her determination.
The relationship between the requesting country and its officials, and officers of the Australian Attorney-General's Department was considered by this Tribunal in Re Stolpe and Department of Foreign Affairs (1985) 9 ALD 104. The majority considered that a relationship of solicitor and client existed between the Commonwealth Attorney-General and the Government of Spain for the purposes of seeking the extradition of the applicant in that case and the communications which occurred in pursuance of that relationship. A strong dissenting view was expressed by Dr A P Renouf. The legislation upon which the Tribunal relied was based on a Treaty for the Mutual Extradition of Fugitive Criminals concluded between the United Kingdom and Spain on 4 June 1878 and applying to Australia by virtue of an Order-In-Council of 27 November 1878. In view of the fact that Australia's law on extradition has been considerably modified by the 1988 legislation, there is not much guidance to be had from the earlier Tribunal decision. No doubt to clarify the relationship, the Act included the following section 50:
"50. Where communications take place between officers of the Attorney-General's Department, on behalf of Australia, and officers of an extradition country or New Zealand, on behalf of that country or New Zealand, in relation to any proceedings or contemplated proceedings for the surrender of that person, there shall be taken, for the purposes of this Act and any other Act, to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country or New Zealand in relation to those communications."
The terms of the section establish a statutory relationship between officers of the Attorney-General's Department on behalf of Australia, and officers of an extradition country. So far as the Australian end of the relationship is concerned, section 50 does not appear to extend to officers outside the Attorney-General's Department. For example, communications between the police forces of the two countries would not appear to be covered (at any rate so far as Australia is concerned) by the provisions of section 50. It would, in any event, be surprising if there were deemed to be a relationship of solicitor and client in those circumstances. The mere fact that government officials have communicated "in relation to any proceedings or contemplated proceedings for the surrender of a person" does not thereby invoke the relationship contemplated by section 50. Moreover, the section does not, in its own terms, confer legal professional privilege on any such communications. Whether any documents are entitled to raise that privilege will depend upon common law principles.
The effect of section 50 was considered at length by Finn J in Pasini v Vanstone (1999) FCA 1271. Although that case dealt with an application to set aside subpoenas, the obiter observations of His Honour relating to claims for legal professional privilege are extensive and must be regarded as binding on this Tribunal.
His Honour's references to Grant v Downs must, of course, now be read in the light of the decision in Esso Australia Resources Limited. For present purposes, nothing appears to turn on the distinction. His Honour accepted that communications made for the purpose specified in section 50 of the Extradition Act would be privileged but warned that not all communications that came into existence in the course of extradition proceedings, or proposed proceedings, would be similarly subject to privilege claims.
At paragraphs 45 to 55 His Honour said:
45 First, it would seem that Mexican officials and Attorney-General's Department officers had communications for the purposes of obtaining a provisional warrant under s 12 of the Act. Those communications would clearly have related to "proceedings or contemplated proceedings for the surrender of a person". If such was their sole purpose then they would attract legal professional privilege. I say sole purpose because s 50 does not itself statutorily ascribe privilege to the communications. It merely deems the parties to be in a relationship capable of attracting such privilege. For present purposes that privilege could not arise under the Evidence Act 1995 (Cth), hence the need to satisfy the sole purpose test of Grant v Downs (1976) 135 CLR 674. I would also note in passing, though without expressing any view on its significance, that s 50 does not in express terms deem the relationship of the officials concerned to be one of solicitor and client in relation to communications for legal advice unrelated to proceedings or contemplated proceedings for surrender of a person.
46 Secondly, it may be the case that at or before the time the Minister took her s 16 decision, the Mexican officials had communications with Attorney-General's Department officials for the sole purpose of the contemplated s 19 proceedings. Such communications, again, could attract legal professional privilege.
47 Thirdly, there may well have been communications between Mexican officials and Attorney-General's Department officers in relation to the making of an extradition request so as to activate the discretion of the Attorney-General under s 16 of the Act. Such communications would not, in my view, attract legal professional privilege. While they might be characterised as having been made for the ultimate purpose of securing proceedings under s 19, they should properly be characterised as communications made for the purpose of enlivening the Minister's discretion under s 16 and, as such, not made for the sole purpose of the contemplated proceedings. The Minister, I would note, has submitted that the various steps in the extradition process ought not be so fragmented: s 16 related communications are merely a step on the way to, and derive their purpose from, contemplated s 19 proceedings. The Minister's s 16 decision, in my view, should be seen as having its own function in the extradition process - and a function in which Parliament would not have intended the Department's officers to be cast in a solicitor-client relationship with Mexican officials in respect of communications inter se relating to a prospective s 16 decision with the consequential inconsistent duties to the Minister and to the Mexican officials this would entail.
48 Fourthly, apart from their s 50 solicitor-client relationship with the Mexican officials, officers of the Attorney-General's Department also act for s 16 purposes as departmental officials in aid of their Minister. Communications made between such officers and the Minister or on behalf of the Minister and third parties for s 16 purposes need to be demonstrated positively to be communications made with the sole purpose of providing or obtaining legal advice to or for the Minister before they can attract such privilege. It is at this point, as I will indicate, that some number of difficulties, legal and practical, may well stand in the way of at least some undifferentiated part of the documentation encompassed by the Minister's assertion of legal professional privilege in the present matter. In saying this I am not questioning, nor could I, the rule that legal professional privilege can attach to confidential professional communications made between salaried government officials and a Minister: see Waterford v The Commonwealth (1987) 163 CLR 54.
49 It follows from what I have said so far that the Attorney-General's Department officials acting in the extradition process perform two distinct functions - one in aid of Mexico in relation at least to the s 12 and s 19 proceedings; the other in aid of the Attorney-General in relation to the Minister's s 16 and, let it be said, s 22 functions. In acting in the performance of each of these functions, the officers concerned are acting in furtherance of an interest that is in each case separate and distinct from the other. In the solicitor-client relationship the officers concerned are acting in the interests of, and owe duties to, the Mexican officials. In the officer-Minister relationship, the officers concerned are acting in aid of the Minister to further the relevant public interest and public purposes served by the statutory power conferred on the Attorney. The respective interests so served I re-emphasise are separate, not common, interests.
50 I mention the above matter for the purpose of calling into question the appropriateness of the practice apparently adopted by the Attorney-General's Department in this case of having the same officers serving both the Minister and the Mexican officials (hence Mexico). There well may be good reason for not translating in an unmodified form to the public sector the common law's objection to a person serving "two masters" in the same or related matters - an objection affecting lawyers in the private sector with increasing stringency: see eg Wan v McDonald (1992) 33 FCR 491; Dal Pont, Lawyers' Professional Responsibility, Chs 8, 9. Nonetheless the public still is entitled to appropriate reassurance that the integrity of the advisory function in the public sector does not appear to be compromised through an adviser in a given instance being in a position of conflicting responsibilities.
51 Furthermore, in a case such as the present, where the adviser obtains and makes communications in the performance of separate functions that give rise, potentially, to separate claims of privilege by the adviser's several "clients", it is important that there be practical segregation of documents embodying those communications so as to facilitate the precise identification of the documents to which a privilege claim can be made by one or other of the clients. I would simply note that, in the present case, the affidavit that asserts the claim of legal professional privilege does not differentiate between documents that may be privileged in the s 50 solicitor-client relationship and those in the departmental officer-Minister relationship. That differentiation is the more necessary for the reason that documents relating to the latter relationship are less likely to be proper subjects of a privilege claim for reasons to which I now turn.
52 Earlier in these reasons I described the 21 January 1999 memorandum sent to the Minister by departmental officials and I set out the terms of the recommendation made. The Minister claims that that memorandum and such documentation as might underpin it constituted legal advice provided to her by lawyers in her Department even though privilege has not been claimed for the memorandum. There is, of course, no indication in the material before me that the Minister sought such advice in relation to her exercise of the s 16 power: cf Re Fritz [1995] 2 Qd R 580. At best it is said by the officer who swore the affidavit concerning this matter, that the role of the departmental official who acted in the matter was "to prepare legal advice, through more senior officers, to the responsible Minister regarding her functions under the Extradition Act 1988".
53 Even if it be accepted that some legal advice may have been obtained by the departmental officers from a third source (eg the Director of Public Prosecutions) for the Minister which could attract a privilege claim, I am not satisfied that the proper characterisation of the role of those officers in relation to the Minister's exercise of her s 16 function was legal adviser and client per se. Rather their role and their relationship with the Minister on the material before me was akin to that described by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65-66:
"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department.
Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision": emphasis added.
54 This surrogate role of the officers concerned was not that of legal advisor but was that of "a player in the [s 16] transaction" - to use Hill J's description in Zemanek v Commonwealth Bank of Australia (Hill J, 2 October 1997, unreported). The tenor of, and the recommendation made in, the 21 January memorandum merely confirms this. Accordingly the privilege recognised in Waterford v The Commonwealth does not attach as of course to communications relating to the s 16 function.55 The overall effect of what I have had to say on privilege is, then, that (i) the documents in the possession, custody and control of the Department (hence the Minister) have to be differentiated by reference to the particular relationship (s 50 solicitor-client or departmental officer-Minister) to which they properly relate; and (ii) within each relationship the actual conditions necessary to attract legal professional privilege at common law must be satisfied. In the departmental officer-Minister relationship the vital condition will be the need to demonstrate in respect of a particular document or documents that the officer was acting as a legal adviser to, and not as a surrogate of, the Minister."
I will now deal with the documents, the subject of the section 42 claim, in the light of these observations. The documents were enumerated and gathered into four groups. Group 1 consisted of 71 documents which, according to Ms Jackson:
"are confidential communications or records of communications between officers of the AGD and officers of RSA either directly or through the agency of Interpol Canberra or through the agency of other professionals acting on behalf of the RSA in relation to proceedings or contemplated proceedings for the surrender of the applicant under the Extradition Act 1988".
The documents in this group depended upon the statutory relationship of solicitor and client constituted by section 50.
Documents 24, 26, 28, 48 and 49 are communications to and from a Mr Helm in 1996. It appears from the terms of some of the documents that Mr Helm may have been part of the original prosecution team in South Africa. However I was informed by Mr Dutton that in the Australian litigation, Mr Helm had sworn an affidavit to the effect that he had left the employment of the South African Department of Justice in May 1994. The documents in question were sent by Mr Helm on the letterhead of Ernst and Young, Accountants, Johannesburg and replies were sent to the same address. This seems to support Mr Dutton's assertion. There was no evidence to the contrary. Accordingly, I do not consider that these documents are communications falling within the terms of section 50 and no claim for legal professional privilege can be made in respect of them.
Documents 62 and 63 are newspaper clippings with a one or two line accompanying letter forwarding the clippings from South African newspapers to the Attorney-General's Department. These clippings cannot be said to have been brought into existence for the dominant purpose of use in existing or anticipated litigation and, in my view, cannot be the subject of a claim for legal professional privilege. I agree that a claim for exemption on this ground has been made out in relation to all other documents in group 1.
Group 2 consists of 38 documents which, according to Ms Jackson, are
"Confidential internal communications within AGD or within Commonwealth DPP or between AGD and the Attorney-General's office created for the sole purpose of proceedings contemplated or contemplated proceedings for the surrender of the applicant under the Extradition Act 1988".
I am unable to see how documents of this nature, consisting mostly of emails between various officers in the Attorney-General's Department can constitute communications in respect of which privilege can be claimed. There is certainly not a relationship of solicitor and client between the various officers. This alone would be sufficient to defeat the exemption claim (Re Proudfoot and Human Rights and Equal Opportunity Commission 16 AAR 411). The communications in my view are administrative in nature and are precisely the Departmental documents which Finn J appeared to have in mind in paragraph 53 of his judgment which I have quoted. There is not even any evidence of a "Chinese wall" between the officers. An examination of the documents simply show that the various officers were conferring between themselves by way of email as to the best way to handle certain situations. One of the documents (document 125) is clearly a section 16 document in any event. It is a submission to the Minister in which the question whether the Minister should sign a section 16 notice is canvassed. The arguments for and against are set out in the document. Again, this is precisely the type of document envisaged by Finn J in paragraph 54 of his judgment.
Of the documents enumerated in group 2 in Ms Jackson's affidavit, I consider that only two support a claim of legal professional privilege. Document 61 is in the form of a message from one officer of the Department to another, but consists principally of an account of a conversation which that officer had with the South African High Commissioner in relation to the extradition proceedings. Similarly document 161 is an account of advice given by an officer of the Attorney-General's Department to the High Commission in relation to progress of the extradition appeals. All other documents appearing in group 2 should be made available to the applicant, there being no legal basis for their exemption.
Group 3 consists of 36 documents which, according to Ms Jackson,
"are confidential communications or records of communications between officers of the AGD and/or officers of the Commonwealth DPP and counsel briefed, in contemplation and for the sole purpose of obtaining or for the provision of legal advice and for use in or the furtherance of existing or anticipated litigation, namely proceedings or contemplated proceedings for the surrender of the applicant under the Extradition Act 1988".
Although reference is made to communications with counsel, I have been able to find only three documents of this nature, namely documents 145, 148 and 149. They certainly support a claim for legal professional privilege.
Documents 21 and 22, however, do not. They are messages passing between officers of the Attorney-General's Department and appear to me to be of the same nature as those in group 2. I accept that communications between officers of the Attorney-General's Department and officers of the Commonwealth Director of Public Prosecutions, in connection with the extradition proceedings, raise claims of privilege. Communications between officers of the Department as such, however, do not.
Group 4 consists only of two documents. They are described by Ms Jackson as:
"Third party confidential communications or records of communications between officers of AGD and officers of the Australian Federal Police either directly or through the agency of Interpol Canberra in relation to proceedings or contemplated proceedings for the surrender of the applicant under the Extradition Act 1988."
In my view, these documents are exempt under sections other than section 42. Communications between the various police services cannot be said to be communications between a solicitor and client or be treated as if they were such communications. They may raise an exemption for other reasons. They do not raise a claim for legal professional privilege.
Group 5 consists of 18 documents for which exemption has been claimed under section 33(1)(b). Some of these documents overlap with those for which exemption has been claimed under section 42. Details of the claim and the reasons for the claim are set out in Ms Jackson's affidavit as follows:
"I claim exemption for the following documents under s33(1)(b) of the FOI Act in addition to s42 of the FOI Act. I have referred to these documents under the subheading "Group 5"
Section 33(1)(b) of the FOI Act exempts material contained in a document which was communicated in confidence to Australia by or on behalf of a foreign government or international organisation. Interpol is such an international organisation. Interpol in Australia is known as the Australian National Central Bureau which has an office in Canberra in the ACT. Interpol Canberra is a separate entity to the AFP and operates under the charter of the Secretary-General, International Criminal Police Organisation, Lyons, France.
The aims of Interpol are:(1) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the "Universal Declaration of Human Rights";
(2) To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.
Annexed hereto and marked "C" is an extract of the General Provision of Interpol's constitution which refers in Article 2 to the aims of the organisation.
In my role as First Assistant Secretary, Criminal Law Division, I am familiar with the role and workings of Interpol NCB Canberra. I am aware of the importance that Interpol attaches to the confidentiality of its communications. I am informed that at the 57th General Assembly of Interpol held in November 1988 the delegates unanimously resolved that the confidentiality of Interpol documents be maintained and used solely for the purposes consistent with Interpol's charter. I am informed that requests for assistance in the investigation of suspected criminal activity made through Interpol are made and received on the implicit basis of confidence even if there is no express request for confidentiality. I am also informed that Australian Police Services including the Australian Federal Police would have difficulty in obtaining information from other police forces if it were to be known that material provided was disclosed to persons the subject of the material.
I am also aware that information communicated by foreign governments is implicitly communicated in confidence. A number of documents in Group 5 fully described in Annexure B are communications in respect of the surrender of the Applicant from the South African High Commission which represents the RSA in Australia."
Interpol has been accepted as an international organisation by this Tribunal for the purpose of this section in Re Rees and Australian Federal Police (1999) AATA 252 at paragraphs 72 to 76. I respectfully agree with the reasoning and conclusions in that decision.
The section requires only that the communication be confidential at the time it is made. It is apparent on the face of the documents that confidence was given on the basis of an expectation that it would be observed. This is apparent from all the documents in this group except for documents 61 and 161. Document 61 is the email recounting a conversation with South African High Commissioner, to which I have already referred. Document 161 is in a similar category. The documents, in my view, raise questions of legal professional privilege because of the section 50 relationship, and are therefore exempt on that ground rather than because of section 33(1)(b).
Documents 62 and 63 are the newspaper clippings to which I have referred in group 1. They are not subject either to legal professional privilege or to a section 33 claim.
Group 6 consists of five documents for which a claim for exemption is made under section 37(2)(b). I have already given reasons why I will affirm a claim for exemption under section 33(1)(b) in respect of all the documents which have been included in the section 37(2)(b) claim. It will therefore not be necessary to examine the documents in relation to that claim.
Group 7 consists of nine documents for which a claim is made under section 33(1)(a)(iii) on the basis that disclosure of the information in the documents would tend to damage the international relations of the Commonwealth. They are basically police documents passing to and from Interpol. As such, I would consider them exempt for the same reasons that are set out in relation to the group 5 documents. It will not be necessary to examine them in relation to the section 33(1)(a)(iii) claim. I would again, however, point out that documents 24, 25 and 28 are communications to and from Mr Helm who, on the evidence before me, was not an officer of RSA. I do not consider, therefore, that these documents fall within the terms of the section.
As set out earlier, the respondent did not press the claims under section 40(1)(d) in relation to documents described in group 8. The applicant did not press for access in relation to a number of documents for which a claim had been made under section 41 and which was set out in group 9. There were, however, three documents (documents 23, 159 and 162) which the applicant did not concede. I have examined each of these documents and agree with the claim that they contain personal information which it would be unreasonable to disclose. The claim, therefore, succeeds in relation to the parts of the documents which contain the personal information.
I consider that the respondent has discharged the onus of establishing that all the 162 documents are exempt except for those documents which I have specifically referred to in these reasons and which I have listed in my formal decision.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed: .....................................................................................
Deputy RegistrarDate/s of Hearing 26 April 2000
Date of Decision 4 May 2000
Counsel for the Applicant Applicant in person
Counsel for the Respondent Mr T Reilly
Solicitor for the Respondent Australian Government Solicitor
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