Roberts-Smith v Fairfax Media Publications Pty Limited

COLVIN J: 1 Mr Ben Roberts-Smith VC MG has brought defamation proceedings in this Court concerning imputations allegedly conveyed by publications about his conduct whilst serving as a soldier in Afghanistan. Mr Roberts-Smith has given evidence to an inquiry conducted under the provisions of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (Regulation) to ascertain whether there is any substance to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (Inquiry). An issue has arisen in the proceedings in this Court concerning the provision of documents by Mr Roberts-Smith to the respondents as part of the pre-trial disclosure process. 2 The Inspector-General of the Australian Defence Force (IGADF) made a claim to public interest immunity over the relevant documents. The respondents challenged that claim. In doing so, the position of the respondents was that they did not seek production of any information given by Mr Roberts-Smith to the Inquiry or any material derived by the Inquiry (directly or indirectly) as a result of disclosure by Mr Roberts-Smith (Excluded Category). That position was adopted because it was accepted by the respondents that such documents would not be admissible in any final hearing of the defamation proceedings brought by Mr Roberts-Smith in this Court because the information was obtained pursuant to statutory provisions that abrogated the privilege against self-incrimination but only on the express basis that the information given or documents produced to the Inquiry would not be admissible against the person in any criminal or civil proceeding. 3 As a result of the position adopted by the respondents there was no need to consider whether documents in the Excluded Category were the subject of a valid claim to public interest immunity. Rather, the dispute concerning the claim of public interest immunity was confined to documents that did not fall within the Excluded Category (Contentious Documents). 4 It should also be noted that the claim to immunity from production arose in a context where there was in existence a detailed regime that limited the disclosure of documents that had been imposed by court order by reason of the existence of the requirements of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Confidentiality Regime). 5 The claim to public interest immunity was evaluated on the basis of open affidavit evidence advanced by the IGADF, but in circumstances where the IGADF sought an opportunity to put on further confidential affidavit evidence if the claim was not upheld. 6 After considering the open affidavit evidence and the submissions of the parties I was satisfied, subject to any further confidential evidence the IGADF may adduce, that there should be production of the Contentious Documents on the basis that adequate steps were taken to maintain their confidentiality. The possibility of achieving that outcome by extending the NSI Confidentiality Regime to cover the Contentious Documents and the information within them was raised in that context: Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 at [87], [97], [99]-[100]. 7 Orders were made requiring the IGADF to deliver any further confidential evidence and for each party to provide a minute of proposed orders as to the terms upon which the documents should be produced in the event that the claim to public interest immunity was not upheld in whole or in part. 8 Thereafter, Mr Roberts-Smith also sought an opportunity to provide a confidential affidavit and, after hearing from the parties, orders were made allowing for that to occur. Further, the IGADF indicated in open court that it no longer maintained the claim to public interest immunity to the extent that it concerned information that would reveal, or tend to reveal, whether or not a notice (described as a PAP notice by reason that it was a form of notice sent to potentially affected persons) had been issued to Mr Roberts-Smith. It was understood by all parties that a PAP notice would contain details of findings or recommendations that the Inquiry was considering whether to make that may affect the recipient of that notice. A PAP notice would be provided in order to afford the recipient an opportunity to respond to the matters in the notice before final findings or recommendations were made by the Inquiry. 9 The Court has now received: (1) a confidential affidavit of Commodore Fiona Sneath, the Deputy Inspector-General of the Australian Defence Force; (2) a confidential affidavit of Ms Monica Allen a senior associate with the firm of solicitors acting for Mr Roberts-Smith; (3) submissions as to the orders that should be made and proposed orders from IGADF; (4) submissions as to the orders that should be made and proposed orders from Mr Roberts-Smith; and (5) submissions as to the orders that should be made and proposed orders from the respondents.

Public Interest Immunity 10 I have considered the confidential affidavits of CMDR Sneath and Ms Allen. Having regard to the matters identified in the affidavits, in my view there is only one matter raised that has not already been addressed by my previous decision that requires further deliberation. It concerns the approach to be adopted in respect of information provided to the IGADF by persons other than Mr Roberts-Smith in circumstances where the statutory abrogation of the privilege against self-incrimination was effected on the express basis that the information given or documents produced (or information or documents derived derivatively therefrom) would not be admissible in evidence against the person in any civil or criminal proceeding. 11 When the applicant sought an opportunity to file confidential affidavit evidence to support the public interest immunity claim, senior counsel for the applicant put the issue in the following terms: The respondents … have disclaimed any request for materials in respect of Mr Roberts-Smith that are protected by the direct use or derivative use immunity but that, of course, doesn't deal with the question that arises as a result of the proper construction of the Act and that is that the interests of other individuals, who have given evidence to the inquiry and who may or may not be called as witnesses in these proceedings, also are safeguarded by the provisions of the legislation. They should not, and cannot, be subject to any cross-examination in respect of anything they have said or provided to the inquiry or any material that is derived from anything they have said or provided to the inquiry. To do so would operate contrary to the strict contours of the legislation and the regulations, your Honour, which would undermine the effective operation and administration of such inquiries for the purposes of the Australian Defence Force. 12 It was also submitted that it was necessary to have access to 'the material' (which I take to be a reference to the documents exchanged between the applicant and the IGADF) in order for the Court to consider that aspect. 13 On that occasion, the respondents pressed the position that the privilege against self-incrimination of persons other than Mr Roberts-Smith was not a basis upon which it might be contended that the evidence of those other persons could not be adduced against Mr Roberts-Smith. 14 The question which requires further deliberation does not concern whether information provided by one party to the Inquiry (on the basis that the privilege against self-incrimination had been conditionally abrogated) (Third Party Information) may be adduced in the defamation proceedings brought by Mr Roberts-Smith. It concerns whether the disclosure of Third Party Information gives rise to a real risk that the information might enter the public domain such that in the event of any criminal proceeding against the third party it might be argued that there had been at least an indirect use of the Third Party Information with the result that an application might be brought to stay the criminal prosecution. This was a concern deposed to by Ms Sneath in her open affidavit in support of the claim to public interest immunity: para 58(c). 15 It is a concern the significance of which depends upon the extent to which there is information of that character, the nature of the offences to which it relates, the number of persons to whom it relates and whether it is possible to redact information of that character in the same manner as will occur in relation to the Excluded Category by reason of the position adopted by the respondents as to such information concerning Mr Roberts-Smith. Speaking generally, these aspects are addressed by the further confidential affidavit material. 16 Having considered the further confidential affidavit material, I am satisfied that public interest immunity extends to the Third Party Information. To be specific, public interest immunity has been demonstrated in respect of information of the following kind: (1) Information acquired compulsorily by the Inquiry from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes. (2) Information acquired by the Inquiry derivatively (directly or indirectly) from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes. (3) Responses to the Inquiry from Mr Roberts-Smith that restate or indicate any of the matters in (1) or (2). (Further Excluded Category) 17 As to the Further Excluded Category, I am satisfied that a balancing of the competing public interests of the kind described in my earlier decision leads to the conclusion that there is a sufficient risk that the information might be used by the respondents in the conduct of their defence of the defamation proceedings in a manner that might result in an application to permanently stay any criminal proceedings against those third parties and that there is a substantial public interest in taking steps to maintain confidentiality to prevent that risk becoming manifest in the particular circumstances revealed by the confidential affidavit material. In reaching that conclusion I have formed the view that the information is of a kind that once known to those acting for the respondents it might be deployed unconsciously or indirectly in the forensic task of conducting the respondents' defence. There is also the risk of inadvertent disclosure which could have consequences for establishing any criminal responsibility. 18 Therefore, in addition to the Excluded Category, the documentation to be produced in response to the notice to produce dated 3 July 2020 and the request to produce the documents described at item 67 of the applicant's amended list of discovered documents dated 13 July 2020 should not include the Further Excluded Category.

Orders for confidentiality 19 The IGADF proposes that the NSI Confidentiality Regime be amended to accommodate the production of the relevant documents under the terms of those arrangements. It seeks an adjournment for a period of 28 days for that to occur. It says that any amendment will require the agreement of the Attorney-General if the orders are to be made pursuant to s 38B of the National Security Information (Criminal and Civil Proceedings) Act. Of course, the provisions of that Act are concerned with protecting national security information. The documents to be produced will not be confined to documents of that character. 20 Subject to the issue of consent of the Attorney-General, the IGADF proposes a form of amendment to the NSI Confidentiality Regime that would create a separate category of sensitive IGADF information that would only be disclosed to 'Authorised Persons' which include the parties, the representatives of the parties in the defamation proceedings, the Commonwealth, a Commonwealth representative and various court officers. 21 The respondents oppose any adjournment for the purpose of agreeing orders. They seek orders that will allow for the production of documents in response to the notice to produce and as identified at item 67 of the discovery as soon as possible. As to documents that contain national security information they say that as the arrangement for the NSI Confidentiality Regime is in place with the consent of the Attorney-General, it is within the Court's powers to include additional documents and information without the consent of the parties. Otherwise, the respondents do not object to the disclosure being confined to Authorised Persons but say those orders should be made without the need for further conferral or agreement. 22 The applicant supports the position of the IGADF. However, notwithstanding the order to file any submissions as to the orders that should be made as to the production of documents the applicant has sought to reserve to itself a further opportunity to make submissions to support a form of order that would limit any disclosure to the respondents' legal representatives 'in the first instance'. I take this to be the position of the applicant and do not propose to entertain further submissions in support of that position given that the applicant has already been afforded that opportunity. I do not accept the submission. In circumstances where protection will be afforded by the redaction to be undertaken by the IGADF to give effect to the extent to which the public interest immunity claim has been conceded (Excluded Category) or has been upheld by these reasons (Further Excluded Category), I am not persuaded that disclosure confined only to legal representatives is appropriate. 23 I am not presently persuaded that the Court can make orders as to national security information of the kind that will be produced in response to the notice to produce and item 67 of the discovery without the agreement of the Attorney-General. Without being exhaustive, it is not possible to conclude on the material before me that the information is, in effect, of the same or similar character to that which gave rise to the arrangement recorded in the existing confidentiality orders. If it were necessary to resolve that question I would convene a separate hearing for that purpose. 24 As matters presently stand, the preferable course is for the parties to be afforded an opportunity to agree orders as to national security information by way of variation of the existing orders establishing the NSI Confidentiality Regime. These orders will apply to the extent that the documents to be produced contain national security information. I propose to convene a case management hearing for the parties to inform me as to the position in relation to agreement as to those orders. 25 Otherwise, to the extent that no issue of national security information arises, the production of the Contentious Documents (not including the Further Excluded Category) should proceed. Steps should be taken by no later than 30 November 2020 to arrange for the IGADF to redact the documents (including those that form item 67 of the discovery) to reflect these reasons. The documents should then be produced to the respondents on the basis that they are subject to a confidentiality regime that is in the same terms as the existing orders stating the NSI Confidentiality Regime (made 15 July 2020) save that those orders will be subject to the terms proposed by the IGADF in its submissions as a new Part M. The effect will be that there will be a separate confidentiality regime operating by the orders now to be made that will be in the same terms as the NSI Confidentiality Regime save that it will include Part M. In substance Part M will confine the disclosure of the documents to be produced in response to the notice to produce and item 67 of the discovery to disclosure to Authorised Persons. Making the orders in those terms should limit the extent to which there may be confusion as to the confidentiality regimes and enable the documents to be produced whilst any further agreement of the Attorney-General is obtained as to national security information. 26 I will also require the applicant to produce a detailed list of the documents that form part of item 67 of the discovery (allowing for exclusion of redacted information). The respondents are entitled to that information as part of the usual discovery process so that they are aware of the documents that are included in the general description currently provided.

Costs 27 I have previously made orders concerning submissions as to costs. Given that matters in relation to public interest immunity have not yet been finalised, I propose to set aside my earlier orders as to the provision of submissions as to costs and simply reserve the question of costs with liberty to apply. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

SCHEDULE OF PARTIES NSD 1485 of 2018

NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE