FEDERAL COURT OF AUSTRALIA
Rivas v Minister for Finance (Privilege Issue) [2025] FCA 138
File number: NSD 1365 of 2024 Judgment of: LEE J Date of judgment: 21 February 2025 Catchwords: EXTRADITION – application under s 39B of the Judiciary Act 1903 (Cth) for relief in relation to a determination of the Minister for Finance that the applicant be extradited to the Republic of Chile pursuant to s 22(2) of the Extradition Act 1988 (Cth)
PRIVILEGE – whether there was conduct which was inconsistent with the maintenance of confidentiality over communications contained in a departmental brief to the Minister for Finance – no waiver of legal professional privilege – no relevant inconsistency – interlocutory application dismissed
Legislation: Extradition Act 1988 (Cth) ss 22, 23
Crimes Act 1900 (NSW) s 86
Criminal Code (Chile) Art 141 No. 3
Treaty on Extradition between Australia and the Republic of Chile [1996] ATS 7 Art II(4)
Cases cited: Adamas v O’Connor [2011] FCA 948; (2011) 282 ALR 302
Levick v Attorney-General (Cth) [2018] FCA 1609; (2018) 162 ALD 169
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 32 Date of hearing: 21 February 2025 Counsel for the applicant: Dr S B Levi with Ms M Wallis Solicitor for the applicant: Nyman Gibson Miralis Defence Lawyers Counsel for the first respondent: Mr T Glover SC with Mr M Pruscino Solicitor for the first respondent: Attorney-General’s Department ORDERS
NSD 1365 of 2024 BETWEEN: ADRIANA ELCIRA RIVAS
Applicant
AND: MINISTER FOR FINANCE
First Respondent
COMMONWEALTH ATTORNEY-GENERAL
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The interlocutory application be dismissed.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)
LEE J:
A INTRODUCTION
In this proceeding, the applicant, Ms Adriana Rivas, seeks various forms of relief in relation to a determination by the Minister for Finance (Minister) (on behalf of the Attorney-General of the Commonwealth), that Ms Rivas be extradited to the Republic of Chile pursuant to s 22(2) of the Extradition Act 1988 (Cth) (Extradition Act). Although there are two respondents, for convenience, where appropriate, I will refer to the respondents collectively as the Minister.
The current interlocutory application made by Ms Rivas concerns the narrow issue as to whether some claims of legal professional privilege can be maintained (or, put another way, whether various documents and unredacted copies of other documents are required to be produced to Ms Rivas).
It is appropriate to start with three important and related matters of context.
The first is that this is not an application in which there is any allegation that the claims made for…
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- Case
- [2025] FCA 138
- Decision Date
CaseChat Overview and Summary
The court considered whether the use of the legal advice in the Minister's submission was inherently inconsistent with maintaining the confidentiality of the advice, despite the redactions applied. The court noted that while the substance of the advice had been redacted, the continued maintenance of the claim arising from these redactions did not give rise to any unfair inconsistency. The court concluded that the application did not demonstrate any conduct that would be inconsistent with maintaining the confidentiality of the legal advice. The court found that the use of the legal advice in the Minister's submission, even with the redactions, did not inherently undermine the confidentiality of the advice.
Accordingly, the interlocutory application was dismissed, and the court reserved costs to be determined in the context of the final outcome of the case. The court's decision was based on the principle that the use of legal advice in the Minister's submission, while including redactions, did not constitute a breach of confidentiality that would warrant setting aside the Minister's decision. The court's dismissal of the interlocutory application and reservation of costs reflect its determination that the application did not demonstrate any unfair inconsistency with maintaining the confidentiality of the legal advice.
Orders
Orders of the court
1. The interlocutory application be dismissed.
2. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted above, the key and determinative issue was whether there was conduct which was inconsistent with the maintenance of the confidentiality over the communications the subject of the interlocutory application, with the question of waiver being determined “in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances”: Osland (at 297 [45] per Gleeson CJ, Gummow, Heydon and Kiefel JJ). C CONSIDERATION Although the application was made in respect of aspects of Attachment A and the documents that constituted Attachments F, K, L1 and L2 of the Ministerial submission, oral argument focussed on Attachment A which, as the affidavit of discovery makes clear, contains redactions applied to parts of the Ministerial submission summarising or otherwise stating the purpose of the legal advice recorded in the other attachments. This was accepted to be the highwater mark of the contentions of Ms Rivas. Hence, argument proceeded on the basis that the ruling that I would make in relation to redactions in Attachment A would be determinative of the whole of the interlocutory application. Given the need to have regard to context, it is worth commencing my consideration of waiver by setting out, in some detail, two sections of the Ministerial submission and its title, which received focus in oral submissions. The first deals with non-refoulement obligations, and is in the following terms: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 ICCPR178. 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).…