Background
Mr. Da Silva sought judicial review of the Minister for Immigration and Citizenship’s decision to cancel his visa under section 501BA of the Migration Act 1958 (Cth). The Minister had exercised this power to set aside a prior decision of the Administrative Appeals Tribunal made some 5 years and 5 months earlier. Da Silva’s substantive challenge raised two grounds: that the delay rendered the Minister’s power extinct, and that the decision was legally unreasonable given the material before the Minister and the circumstances of the delay.
Prior to the substantive hearing, Da Silva served a notice to produce on the Minister. The Minister applied to set aside paragraph 3 of that notice, arguing it lacked legitimate forensic purpose and constituted “fishing” for evidence. Separately, Da Silva challenged the Minister’s claims of legal professional privilege over a draft submission and requested an affidavit detailing the steps taken to comply with the notice to produce. Justice Thawley heard both interlocutory applications on 29 June 2026.
The Court’s Holding
The court found that documents sought by paragraph 3 possessed “apparent relevance” to Da Silva’s grounds of review and could reasonably be expected to illuminate issues in the case. However, the court amended paragraph 3 because its original wording was overly broad. The paragraph had required production of “all documents that were available to” the person who drafted the submission, which could capture documents merely accessible but bearing no relation to the contended jurisdictional error. The court redrafted it to require only “documents relating to or referring to the applicant that were before” such person, excluding documents already produced. The Minister was ordered to respond by 3 July 2026.
On the privilege issue, the court rejected Da Silva’s attempt to distinguish between the substantive draft submission and the lawyer’s comments within it. The court found the entire document privileged, noting that a draft submission with a lawyer’s comments ordinarily constitutes communication made for the dominant purpose of seeking instructions and conveying legal advice regarding the exercise of statutory power—a paradigmatic case of legal professional privilege. The court also upheld privilege over a covering email and internal discussions about the legal advice, finding no basis to doubt the privilege claims. Justice Thawley declined to require an affidavit explaining compliance with the notice to produce, holding that the Court should accept legally represented parties’ representations of good faith compliance unless there is good reason to think otherwise.
Key Takeaways
- Notices to produce must be sufficiently narrow and tied to apparent relevance; “available to” language that casts too wide a net may be amended to require documents actually “before” the decision maker.
- Draft submissions prepared by lawyers with integrated legal advice remain subject to legal professional privilege even when sought in discovery; courts will not routinely dissect drafts to extract unprotected portions.
- Parties should not routinely challenge privilege claims absent a real basis; increasing privilege disputes consume judicial resources, especially when referred away from the docket judge who knows the matter.
- In the absence of specific evidence of bad faith, courts will accept representations from legally represented parties that they have complied in good faith with discovery obligations and will not require supporting affidavits as a matter of course.
Why It Matters
This decision provides practical guidance on the intersection of discovery obligations and legal professional privilege in administrative law litigation. It reinforces that notices to produce must target documents with genuine relevance to the issues at hand, not cast about hoping to uncover useful facts. The court’s firm protection of privilege over lawyer-drafted submissions signals that government agencies cannot be compelled to reveal the substance of legal advice given to ministers in the course of statutory decision-making—a principle important to the candid provision of counsel.
Justice Thawley’s remarks on the proliferation of privilege challenges are notable and instructive. The court emphasized that such challenges should not become routine disputes but should be mounted only where there is a real, apparent basis for questioning the claim. By discouraging referrals of privilege issues to judges or registrars other than the docket judge, the court highlighted concerns about inefficiency, duplication of effort, and delay—cautionary guidance for the profession as litigation grows more contentious around discovery and privilege matters.