Consideration
62 As noted above, the IGADF accepted, and properly so, that there was a relevant public interest consideration on each side of the equation (that harm would be done by disclosure of the documents sought and the proper administration of justice would be frustrated or impaired if the documents were withheld), and that the balancing exercise described in Alister v The Queen is to be performed.
63 The documents sought are documents which, if they exist, arose as a result of the Inquiry. The circumstances in which the Inquiry arose and the role of the IGADF are described above and are unnecessary to repeat. Suffice to say for present purposes, that significant steps were taken in its conduct and the reporting of its findings, to ensure confidentiality. Given the basis of the Inquiry was to ascertain whether there was any substance to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the ADF's Special Forces in Afghanistan, the seriousness of the subject matter and the consequent need for confidentiality to enable Major-General Brereton to conduct his investigation, is self-evident.
64 I accept the evidence given by the IGADF in the open and confidential affidavits. The deponent plainly has extensive experience both in the military and in his role as Inspector-General of the Australian Defence Force. It is also evident that care has been taken in the preparation of the affidavits. The issues addressed concern matters not wholly within the Court's experience. The experience of Mr Gaynor, most particularly over the course of the Afghanistan Inquiry places him in a special position to assess the damage to the public interest that would arise if the information in question was released.
65 The basis on which the issue of safety is put is readily understandable. In respect to the second basis of the claim Mr Gaynor in his open affidavit at [47] states that:
The types of inquiries that the Office of the IGADF conducts pursuant to its statutory mandate are very often of a most serious nature, as was the case with the inquiry. Investigations of this kind require a very high degree of trust and confidence in the integrity of the Office of the IGADF and I and members of the inquiry team have taken great care to build and foster sufficient trust and confidence within the ADF and with others who may be considering engaging with my office.
66 Significant weight can be attached to the opinions he expresses about the impact of disclosure of the information sought, particularly on his ability to fulfil his statutory role.
67 That said, this case has an added feature, not ordinarily present in cases where such a claim is made, in that there has already been orders made by Colvin J which have had consequences in the production of material to the parties generated from the Inquiry: Roberts-Smith (No 6); Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630 (Roberts-Smith (No 8)). For the reasons explained below, that may affect the weight to be attached to the various considerations in the balancing exercise, including relatively to each other, which must necessarily include the weight to be attached to the evidence of the IGADF. Given the information sought, the consequences of the previous orders are part of the factual matrix against which these claims are made and must be considered.
68 Before returning to the orders of Colvin J there are five submissions that it is appropriate to address at the outset.
69 First, as the High Court has recognised, in the balancing of competing interests, the balance may be struck differently in civil and criminal proceedings: HT v The Queen at [33], citing Al Rawi & Ors v Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 at [101] (Al Rawi). In the context of civil law, the liberty of the subject is not at stake: Al Rawi at [102]. The applicant added to that the necessary consequence for the protection of the public. Although the applicant strenuously took issue with the submission by the IGADF (and a similar submission made by the Commissioner), there is an obvious difference, and its significance to the balancing exercise is self-evident: see for example, Alister v The Queen at 414, 456; Sankey v Whitlam at 42, 61-62.
70 Although it may be readily accepted that the imputations alleged to have been made against the applicant are of the most serious kind, nonetheless, these are defamation proceedings. Accepting the consequences of the outcome of a defamation proceedings, as described in Carson v John Fairfax at 60-61, nonetheless, liberty is not at stake. Indeed, it could be said that a corollary of the fact that these allegations are serious, is that the public interest in the ability of the IGADF to fulfil his statutory functions in relation to such matters as those that underlie the proceedings is high (as is the Commissioner's ability to investigate such alleged crimes). What can be said is that these defamation proceedings, from the applicant's perspective, are directed to an outcome broader than some civil proceedings in that, as he emphasised, the purpose includes vindication of the applicant's reputation.
71 Second, this public interest claim is made in a context where, although the identity of the Afghan witnesses in these proceedings were initially suppressed on application of the respondents, they are no longer so, as a result of there being no application by anyone to extend that suppression order: see Roberts-Smith (No 10) at [5]. Their identities are now a matter of public knowledge. It appears no subpoenas have been issued requiring them to give evidence, accepting the jurisdictional issues that arise given the witnesses are in Afghanistan. The import of that, regardless of the jurisdictional issues, is that it appears there is no necessity for the witnesses to be compelled to give evidence. It appears that it is expected that they will voluntarily giving evidence.
72 Third, in this regard, there is substance to the submission by the IGADF that it is one thing to give such evidence in support of Australian media in respect to these allegations, but another, to co-operate (if that be the case) with what would be seen as a government of the coalition forces. The risks to a person in that latter circumstance were described by Mr Gaynor, and can be accepted. I do not accept the applicant's submission that the IGADF had previously accepted the risk had abated. This submission, recited above at [51], is a reference to an affidavit of Mr Bartlett and a submission based thereon, which was before the Court in the respondent's application that the evidence of the Afghan witnesses be given by audio-visual link: Roberts-Smith (No 10) at [58]. I accept the submission of the IGADF that properly read, the submission at its highest, is that there was no evidence available before the Court to show what the risk was after December 2020. That alone does not support the proposition that the risk has abated. Moreover, Mr Gaynor's evidence, which is current, is before the Court.
73 Fourth, I am mindful of the potential effect on s 21 directions, which prohibited the disclosure of the identities of persons who have given evidence to the Inquiry, if the public interest claim is not upheld. As a general proposition it can be accepted that the use of compulsory processes to circumvent the effect of such directions undermines the effectiveness of those directions and, in turn, erodes the degree of assurance that persons cooperating with IGADF inquiries derive from the existence of the direction-giving power.
74 Fifth, if it exists, the material sought by the subpoena in this application arises because of the respondents' reliance on the defence of truth. As noted by the IGADF, this subpoena is directed to third parties to the proceedings. As the IGADF submitted, the consequence of upholding the claim is that neither party has access to or could use the material. I also accept, as the IGADF submitted, that as a general proposition cases proceed, particularly in the civil context, where the opposing party does not necessarily have the prior statements of the witnesses, and it does not result in a trial being necessarily unfair. However, the balancing exercise is being conducted in the context where the IGADF accept that the withholding of information is directly relevant to the credibility of any Afghan witness who will give evidence in these proceedings would impair, at least to some extent, the administration of justice. I accept the applicant's submission as to the significance of credit of the Afghan witnesses to these proceedings having considered the material relied on by the applicant to illustrate why that is so as articulated in the submissions. The proposed evidence of the Afghan witnesses is summarised in Roberts-Smith (No 5) at [59]-[64]: Roberts-Smith (No 10) at [13] and [42]-[49]. In Roberts-Smith (No 10) Besanko J observed at [52]-[53]:
[52] Secondly, in Roberts-Smith (No 5) I noted that, on the face of a number of the outlines of evidence, including those of the Afghan witnesses, there appeared to be some inconsistencies in the evidence to be advanced by the respondents about the events in Darwan on 11 September 2012. I said (at [72]):
Other inconsistencies or uncertainties identified by the applicant are as follows: (1) the amendments do not contain a statement identifying the place where Ali Jan was shot and the outlines of evidence are inconsistent (Person 4: the dry creek bed below the cliff; Person 13: in the bushes nearby; Person 62: pulled or dragged by two soldiers short in stature from the creek bed to the cornfield and not known to Person 62 whether at the time Ali Jan was dead or alive; Person 63: Ali Jan's dead body lying in the cornfield; Person 64: Ali Jan's dead body found under a berry tree); and (2) the statement by the respondents' solicitors on 24 June 2019 that Person 4's outline of evidence should not be construed as suggesting that Person 11 executed Ali Jan (see [41] above).
[53] The evidence of the Afghan witnesses if accepted as identifying the applicant, and if accepted generally, is evidence of very serious misconduct by the applicant and is an important aspect of the respondents' case. The conduct is denied by the applicant and, on this application, it is appropriate to assume that it will be the subject of a very vigorous challenge. It is appropriate to assume that credit and reliability will be in issue in cross-examination…
75 I accept the applicant's submission as to the potential relevance and significance of the material.
76 Given that the applicant's submission is that this material is relevant as it potentially goes to the Afghan witnesses' credibility, the submission that neither party would have the material does not have the significance in this case that it might otherwise have. The IGADF submitted that in many cases, a litigant would be deprived of both the evidentiary benefit and the forensic benefit that might come from access to particular information that, if it exists, would be protected by public interest immunity, but in this case it is "unlikely that either party would be deprived of either of those two things if our claim is upheld". The absence of prior material or statements, if it exists, as a general proposition, is likely to have more of an impact on the applicant's ability to conduct his case, than the respondents. The respondents are calling the Afghan witnesses and prior statements of any witness to its case, have a different and more limited potential relevance (particularly given the stage of the proceedings), to that of the applicant. This is also reflected by the fact the respondents did not take a position on the application; they did not argue to obtain access to the material. The material is sought by the applicant so as to potentially use it to impugn the credit of witnesses.
77 Having made those observations, it is appropriate to return to the orders made by Colvin J. It is timely to recall that it was the respondents who were seeking the documents in that hearing.
78 The issue of most significance for present purposes was the consideration by Colvin J in Roberts-Smith (No 6) of the PAP notice directed to the applicant, over which the IGADF made a claim for public interest immunity. The claims were described in broad terms at [33]-[34]:
[33] …the submission for the IGADF was to the effect that the private nature of the process established for the Inquiry and protected by the directions that had been made in the course of the Inquiry provided an assurance to encourage those with relevant information to come forward to assist the Inquiry. They could do so on the basis that there would be privacy unless and until a decision was made as to whether the final report of the Inquiry would be made public, and if so to what extent.
[34] Reliance was placed upon cases concerned with protecting the integrity of an investigative process as well as those concerned with protecting the identity of informers.
79 At [60]-[61] of Roberts-Smith (No 6), Colvin J summarised the evidence as to the nature of such a notice which, in light of the applicant's submissions in this matter, it is appropriate to recite:
[60] The final matter stated in paragraph e. above deserves some amplification for present purposes. The purpose in providing PAP Notices to individuals is to afford them the opportunity to present submissions and further information as to matters that may be the subject of adverse findings against them. In the course of a private investigation it is likely to be the first and only opportunity that a party has to provide a response to the nature of claims made and the basis for them because up until then, other than by providing evidence personally, the party will not have participated in the process by which evidence has been gathered from others and considered by those with the conduct of the Inquiry. If the process of serving the PAP Notices was not conducted confidentially then there would be the risk of considerable unfairness because the matters in the PAP Notices would be released without a proper opportunity to answer the claims. The unfairness that the process of serving notices was designed to avoid would be manifest. By logical extension the fact that a PAP Notice had been given to a particular person is a matter that is justified as being required to be kept confidential because it reflects views that may not ultimately be expressed in the report. Adverse inferences that could be quite damaging to the reputation of a person may be drawn from that fact that a person has been given a PAP Notice given the publicly available information concerning the subject matter of the Inquiry. They may be drawn in circumstances where, after receiving a response to a PAP Notice the Inquiry is persuaded to make different findings or no adverse findings. There is a public interest in ensuring the fairness of the process conducted by the Inquiry and, on the evidence, and for the above reasons that includes the confidentiality of the process by which the communications with Potentially Affected Persons is conducted.
[61] The Inquiry has commenced the process of using PAP Notices. To date, not everyone who is likely to receive a PAP Notice has been issued with a notice. As to the nature and content of a PAP Notice, CDRE Sneath deposed as follows (para 29):
A PAP notice is not a pro forma document; each notice is tailored to the circumstances of the individual recipient. However, generally speaking, PAP notices contain the following information:
a. Potential findings or recommendations: PAP notices identify each finding or recommendation that the Inquiry is considering whether to make. While various types of potential findings and recommendations are included in PAP notices, some are of a serious nature. For instance, some PAP notices contain potential findings to the effect that there is credible evidence that a named person committed a criminal offence and/or that there is a realistic prospect of a criminal investigation obtaining sufficient evidence to charge a named person with a criminal offence. Further, some PAP notices contain potential recommendations to the effect that the CDF should refer a named person to a law enforcement body for criminal investigation.
b. Factual background: PAP notices summarise the factual background relevant to each finding or recommendation that the Inquiry is considering whether to make. Ordinarily, this summary describes in narrative form the incident or incidents giving rise to the potential finding or recommendation. Because of the subject matter of the Inquiry, these incidents are ordinarily incidents which occurred in Afghanistan during operations carried out by the ADF's Special Forces.
c. Evidence: PAP notices summarise the evidence relevant to each finding or recommendation that the Inquiry is considering whether to make. In many cases, this summary of the evidence is lengthy and highly specific. The summary ordinarily contains the following: (i) a summary of relevant documentary evidence (whether sourced from the ADF, the Department of Defence, a partner military force or otherwise, and including documentary evidence that is operationally sensitive and/or security classified); (ii) a summary of relevant oral evidence given by witnesses in their interviews with the Inquiry (including, in many cases, extensive extracts from the transcripts of those interviews and also including oral evidence that is operationally sensitive and/or security classified); and (iii) a summary of relevant oral evidence given by the recipient of the PAP notice in his or her interviews with the Inquiry (including, again, extensive extracts from the transcripts of those interviews and oral evidence that is operationally sensitive and/or security classified). Some PAP notices also contain, at least to some extent, observations about the evidence that has been gathered, including consideration of issues such as the reliability of particular evidence and/or the credibility of particular witnesses.
(original emphasis)
80 Colvin J concluded at [87]-[88] of Roberts-Smith (No 6) that:
[87] On the evidence as it presently stands, I would order the disclosure of the Contentious Documents. I would do so on the basis of the concession made by the respondents that the documents will need to be redacted to exclude material in order to protect the privilege against self-incrimination and on the basis that steps will need to be taken to ensure that the contents of the documents are otherwise protected by appropriate orders restricting the persons to whom their contents may be disclosed, subject to further order. I am not persuaded that there should be any different approach taken concerning any PAP Notice, if it exists.
[88] Before making final orders, I would afford to the IGADF an opportunity to put on a further confidential affidavit concerning any aspect of the contents of the Contentious Documents that should cause me to reach a different conclusion. I would receive that affidavit confidentially in accordance with the authorities and make final orders taking account of the contents of the affidavit
81 His Honour thereafter addressed ten issues which had been taken into account in the balancing exercise, three of which it is appropriate to recite. At [92] Colvin J concluded that on the available evidence if the documents (including the PAP notice) existed, there is a "real likelihood that they will contain information of considerable forensic importance for the conduct of the respondents' defence".
82 At [97] of Roberts-Smith (No 6) Colvin J concluded that:
Eighth, the submission was advanced for the IGADF that there may be instances where public interest immunity may mean that a party is unable to establish its case. So much may be accepted. However, instances where the balancing exercise will lead to the result that information that is materially relevant to a case of a kind where the subject-matter is of real significance for the party seeking disclosure being immune from production at common law may be expected to be confined to instances where there is a great risk of harm to the public interest if the information was disclosed. The risk here is the prospect that the assurances of confidentiality provided to those who are to be encouraged to co-operate and provide information to the Inquiry may be undermined. For reasons already given, a risk of that kind has been demonstrated. However, in circumstances where adequate steps are taken to maintain the confidentiality of the Contentious Documents and public interest immunity could be claimed before any such document (or the information obtained from the document) was admitted into evidence in the proceedings, that risk must be low. Further, it is a risk the significance of which must be assessed in the context of the prospect that part or all of the report of the Inquiry may be made public and that parties providing information may be called upon to give evidence in any future criminal proceedings. In other words, this is not an instance where those participating in the Inquiry could be given an assurance that information that they may provide to the Inquiry will be kept private in all circumstances.
83 And at [99] of Roberts-Smith (No 6) Colvin J observed:
Tenth, there is always a risk of inadvertent disclosure of information the wider its dissemination. By reason of their subject matter, these proceedings are being conducted with detailed arrangements in place to protect the confidentiality of certain information disclosed in the proceedings, including the identity of particular individuals. There is no suggestion that there have been issues with complying with those arrangements which deal with information of equivalent or greater sensitivity to that which may be expected to be included in the Contentious Documents. The existing arrangements may be extended to cover the Contentious Documents and the information within them.
84 After considering the further information put by the parties, the orders included production of any PAP notice in respect to the applicant but that it be redacted to protect from disclosure any information which was given by the applicant to the Inquiry, or any material derived by the Inquiry derivatively as a result of disclosure by the applicant or by any third party. Any document recording such information would be inadmissible in the proceeding because of the relevant statutory scheme under which the Inquiry was conducted which has the consequence that the privilege against self-incrimination does not apply within the Inquiry on an express basis that the information given or documents produced to the Inquiry, or documents obtained derivatively therefrom, are not admissible in evidence against any person in civil or criminal proceedings.
85 I note that in Roberts-Smith (No 8), which led to the orders, Colvin J identified the question then before him at [14], as follows:
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).
86 A number of observations can be made. First, the orders made by Colvin J were not the subject of an appeal by the IGADF. Second, as the IGADF submitted, a basis of Colvin J's conclusion in Roberts-Smith (No 6) as set out at [93] was that:
…the information is in the hands of Mr Roberts-Smith. This is not an instance where a party to litigation seeks access to information in the hands of a third party and the consequence of upholding a claim to public interest immunity will fall equally in the sense that it will mean that the information is not available to either party. Further, some lawyers who act on behalf of Mr Roberts-Smith in the investigation also act for him in the conduct of the defamation proceedings. Therefore, if the public interest immunity claim is upheld, those lawyers will have access to the Contentious Documents whereas lawyers acting for the respondents will not.
87 However, that that reason does not apply here, does not alter the consequences of the orders made. Regardless of the reasons for doing so, the fact is, that the material has been released. Third, even though the respondents were aware of the Afghan witnesses before the orders of Colvin J, the respondents now have the benefit of the material released. Regardless, that does not gainsay the submission that the respondents now have the material, to which apparent use has been made. Finally I note that the documents which were released as a result of the orders of Colvin J are subject to the NSI orders which dictate their handling and therefore limit the use that can be made of them.
88 That said, it does not follow, simply because information was released by Colvin J, with some of the public interests claims by the IGADF not being upheld, that the claims made by the IGADF in this application must necessarily fail. Any determination as to whether a claim of public interest immunity is established is necessarily fact specific.
89 A resolution of this claim is not simply a question of the inevitable consequence of the "cancer spreading" from the release of that material or that the claims should be refused because you "can't do one without the other". Nor does it simply mean that the applicant "should have an unhindered opportunity to test the case of the respondents". A resolution of the claim is also not simply about trying to stem the tide, stopping the further spread of material. Nor is it relevant, as the IGADF appeared to contend, that the result of not upholding the claim may result in a cascading series of subpoenas from the parties seeking material. Any subpoenas issued in the future will also be addressed, according to the facts and evidence relevant to it at the time the issue arises for determination. To be clear, it certainly does not follow, and it cannot be assumed from the outcome of these proceedings, that material can be obtained by any subpoena to the IGADF over an objection of public interest immunity. As referred to below, and explained in more detail in the confidential reasons, there are very particular circumstances applicable to the determination of this claim.
90 I appreciate that, as the IGADF submitted, he opposed the release of those documents in the proceeding before Colvin J. Although that reflects a consistency in the approach taken, which reflects upon the attitude and opinion of the IGADF, it does not otherwise advance his case. Regardless of that fact, or the reasons why Colvin J concluded that balancing of the respective interests resulted in the documents being released, the consequence was that they were released, with the respondents now having possession and use of certain documents, including the applicant's PAP notice (and the non-redacted information contained therein). As noted above, that must be the context in which these claims are considered, as it plainly affects the weight to be attached to various considerations relevant to the balancing exercise, and the relative weights of those considerations.
91 It is timely to recall the limited nature of the material sought by this subpoena, being certain material if it exists, relating to the Afghan witnesses, in relation to a particular allegation against the applicant related to conduct in Darwan on or around 11 September 2012.
92 In addition to the submissions referred to above, the IGADF submitted that if the public interest claim is not upheld there is a risk of inadvertent disclosure, even if there were protective orders. As is apparent from Colvin J's observations at [99], recited above, his Honour recognised that there is always a risk of inadvertent disclosure. That may be accepted. However, as Colvin J recognised, there are protective orders in place in relation to the conduct of these proceedings which could be extended to cover the material his Honour was considering. They were so extended, as is apparent from Roberts-Smith (No 8). Although I accept what is involved in amending NSI orders, it has previously been done to accommodate those documents in these proceedings. There is no reason to suppose, if there are documents to be produced, given the basis of the public interest immunity claims in this application, that that could not occur again. I proceed on that basis. I note in that context the apparent co-operation between the subpoenaed parties (those acting for various Commonwealth agencies) and the applicant, which has led to the reduction of the scope of subpoenas and of the claims for determination by the Court. In this context the IGADF also submitted that, subject to the consideration of the Attorney-General, one of the options available is for the documents to be produced under the NSI orders as "sensitive documents" without an order being amended. The concern expressed by the IGADF in that respect seems to be that such classification permits an application to the Court by a party to reclassify the documents to a lesser standard which, if it occurred could lead to greater dissemination. That submission at this stage is speculative. If such a path was followed and if an application was made to the Court, it would be for the Court to decide the application based on the material then before it.
93 As noted above, some submissions were made in closed court due to the application of the NSI orders to certain material, and I have addressed aspects of those submissions in a brief confidential reasons which is supplementary to this judgment. Suffice to say that in balancing all considerations I encompass those in the confidential reasons. Balancing all the considerations in the very particular circumstances of this case, I am satisfied that, subject to any further confidential evidence the IGADF may adduce, there should be production of documents, if such documents exist, sought in the manner described in the confidential reasons.
94 In that context I provide an opportunity to the IGADF to provide any further confidential evidence it wishes in support of his claim, including a confidential submission if considered necessary.