In Rivas v Minister for Finance [2025] FCA 824 the Federal Court refused an application seeking leave to appeal an interlocutory decision refusing disclosure of partially redacted departmental advice related to an extradition decision made pursuant to section 22 of the Extradition Act 1988 (Cth).

The dispute arose regarding Ms Rivas’ challenge to her proposed surrender to Chile, where she was accused of human rights violations committed during the Pinochet regime. Ms Rivas sought access to redacted portions of the departmental brief prepared for the Minister arguing that partial disclosure of the brief’s conclusions amounted to a waiver of legal professional privilege. The redacted material contained legal analysis of two critical issues in respect of whether Ms Rivas would face a real risk of torture if extradited to Chile (engaging Australia’s non-refoulement obligations under the Convention Against Torture) and whether Ms Rivas’ alleged conduct in the 1970’s satisfied the dual criminality requirements under Article II(4) of the Australia-Chile Extradition Treaty.

In dismissing the application, Longbottom J found that Ms Rivas failed to make out any relevant inconsistency let alone inconsistency which could be accurately described as unfair. Her Honour held that while the redactions contained in the departmental advice were relevant to the decision to surrender Ms Rivas to the Republic of Chile the departmental advice did not reveal the substance or gist of the legal advice and the privilege claim remained intact.

Trent Glover SC and Michael Pruscino of 11 St James Hall were instructed by the Commonwealth Attorney-General’s Department.

Link to judgment: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0824