FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Ltd [2018] FCA 1943

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide agreed or competing orders to give effect to these reasons within seven (7) days, or such further time as the parties may request.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This case arises out of litigation commenced by the applicant, Mr Ben Roberts-Smith, in relation to media reporting of matters pertaining to an inquiry being conducted by a delegate of the Inspector-General of the Australian Defence Force (IGADF) arising out of Australia’s military involvement in Afghanistan (Inquiry). The Inquiry is being held under s 110C(1)(f) of the Defence Act 1903 (Cth). It is being conducted in private pursuant to a determination made under reg 19 of the Inspector-General of the Australian Defence Force Regulation 2016 (IGADF Regulation). A direction has been given under reg 21(1) to witnesses not to disclose the contents of their evidence to persons other than their legal advisers or confidential counsellors.

2    The respondents, Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and the Federal Capital Press of Australia Pty Ltd, are the publishers of certain articles that refer to Mr Roberts-Smith and to the Inquiry.

3    By two separate, parallel interlocutory applications, non-publication orders are sought over evidence that was filed in Court and relied upon as part of an unsuccessful interlocutory application for injunctive relief made on 10 August 2018. The interlocutory applications are brought under s 37AH(1) of the Federal Court of Australia Act 1976 (Cth) (Act) and were filed by:

(1)    Mr Roberts-Smith, as a party to the proceedings, relying on s 37AH(1)(a) of the Act; and

(2)    the Commonwealth, as a person I am satisfied should be considered by the Court to have a sufficient interest in the making of such an order, as provided for by s 37AH(1)(b) of the Act.

4    The Commonwealth also makes a separate claim of public interest immunity over the same information. That claim does not require separate consideration as its substance is dealt with amply by the relief sought under s 37AH(1) of the Act.

5    The respondents appeared at the hearing of the two parallel interlocutory applications. By way of context only, they are also the respondents in subsequent and separate defamation proceedings brought by Mr Roberts-Smith, which have been docketed to Besanko J.

6    Section 37AH(2)(d) of the Act gives a news publisher a right to appear and be heard on an application for a suppression or non-publication order. Nationwide News Pty Ltd, Seven West Media and Nine Network Australia Pty Ltd, who are not parties to this proceeding, exercised that right and appeared at the hearing of the two parallel interlocutory applications. They will be referred to as the non-party news publishers.

Background and procedural history

7    Mr Roberts-Smith commenced proceedings in this Court on Friday, 10 August 2018 by way of an originating application, an interlocutory application seeking urgent interim relief and a supporting affidavit of Mr Mark Geoffrey O’Brien affirmed 10 August 2018, which was accompanied by an exhibit described as Confidential Exhibit MOBL-1.

8    By way of his originating application, which is still on foot despite the subsequent defamation proceedings that have been commenced, Mr Roberts-Smith relevantly seeks the following substantive relief (emphasis in original):

1.    A declaration that in publishing the whole or part of the article entitled “Beneath the bravery: the dark secrets of our most decorated soldier” (Article) or a substantial copy of that Article, the Respondents have directly or indirectly acted contrary to a direction given by the Inspector-General of the Australian Defence Force pursuant to regulation 21 of the Inspector-General of the Australian Defence Force Regulations.

2.    Further and/or in the alternative to prayer 1, a declaration that in publishing the whole or part of the Article, the Respondents have published information known by officers, servants or agents of the Respondents to be:

(a)     confidential to the Commonwealth of Australia;

(b)     have been disclosed to the Respondents in breach of the statutory and equitable obligations of confidence applicable to the unidentified officers, servants and agents of the Commonwealth of Australia who have disclosed such information to them.

3.    A declaration that in publishing the whole or part of the Article, or a substantial copy of that Article, the Respondents have disclosed the contents of “official reports” sighted by the officers, servants or agents of the Respondents, contrary to regulation 21 of the Inspector-General of the Australian Defence Force Regulations.

4.    Further and/or in the alternative to prayer 3, a declaration that in publishing the whole or part of the Article, the Respondents have published information known by officers, servants or agents of the Respondents to be:

(a)     confidential to the Commonwealth of Australia;

(b)     have been disclosed to the Respondents in breach of the statutory and equitable obligations of confidence applicable to the unidentified officers, servants and agents of the Commonwealth of Australia who have disclosed such information to them.

5.    Such further or other orders as this Court deems appropriate.

9    Late on the afternoon of Friday, 10 August 2018, Mr Roberts-Smith sought an urgent hearing of his interlocutory application for interim relief, which I heard as duty judge. That application, which relied upon Mr O’Brien’s 10 August 2018 affidavit and Exhibit MOBL-1, relevantly sought orders:

(1)    restraining the respondents from publishing in print the article referred to in [1] of Mr Roberts-Smith’s originating application;

(2)    requiring that the online publication of the article be taken down; and

(3)    restraining the respondents from publishing or disclosing any article or information that would be contrary to the direction given pursuant to reg 21(1) of the IGADF Regulation, that was confidential to the Commonwealth, or that had already been disclosed to the respondents in an asserted breach of statutory and equitable obligations of confidence imposed upon officers, servants or agents of the Commonwealth.

10    Later on the night of Friday, 10 August 2018, I dismissed Mr Roberts-Smith’s interlocutory application, not being satisfied that the balance of convenience favoured the grant of the relief sought. During that process, at the oral request of senior counsel for Mr Roberts-Smith, I made interim suppression orders over the publication of Exhibit MOBL-1, limiting its access to the external solicitors and counsel for the first respondent, Fairfax. I granted Fairfax liberty to apply to lift or vary that interim suppression order.

11    On later reflection, I considered that the interim suppression orders made on 10 August 2018 incorrectly placed the onus on Fairfax to lift or vary the interim order, whereas the correct position was that it was for Mr Roberts-Smith to make a final application so as to maintain the benefit of the order made on an interim basis: see s 37AI(1) of the Act. On 16 August 2018, I therefore made further orders requiring Mr Roberts-Smith to file, by 22 August 2018, any application under s 37AG of the Act seeking to continue the interim suppression order over Exhibit MOBL-1, or seeking that a different suppression or non-publication order be made, in lieu of which the interim suppression order would cease to have effect on that date.

12    On 22 August 2018, Mr Roberts-Smith filed the interlocutory application that these reasons are in part concerned with (Roberts-Smith non-publication application).

13    Shortly afterwards, I granted leave to the Commonwealth to file its own interlocutory application dated 24 August 2018, as subsequently replaced by an amended interlocutory application dated 26 September 2018 and ultimately filed on 11 October 2018 (Commonwealth non-publication application), and made the orders sought therein on an interim basis. I also varied the suppression order over Exhibit MOBL-1 to grant access to the Commonwealth on a limited basis, and made various orders to facilitate the hearing of any formal requests for media access to restricted documents.

14    I stood over both the Roberts-Smith non-publication application and the Commonwealth non-publication application for hearing on 6 September 2018, and made orders for the filing of evidence and submissions. The evidence at that hearing was as follows:

(1)    Evidence before the Court in the substantive proceeding (prior to the filing of the Roberts-Smith non-publication application):

•    affidavit of Mark O’Brien, affirmed 10 August 2018; and

•    affidavit of Mark O’Brien, affirmed 22 August 2018.

(2)    The Commonwealth’s evidence on its non-publication application:

•    affidavit of Major General Adam Findlay, sworn 24 August 2018 (originally suppressed, but suppression subsequently lifted); and

•    affidavit of Paul Kenny, sworn 5 September 2018;

(3)    Non-party news publishers’ evidence on both non-publication applications:

•    affidavit of Corey Jankie, affirmed 5 September 2018.

15    A further affidavit from Mr Kenny, sworn 19 September 2018, was filed to rectify some uncontroversial errors and omissions.

16    At the hearing of the non-publication applications, the Commonwealth handed up an amended interlocutory application to clarify the orders it sought. A version of that document in a further amended form was filed on 11 October 2018. It reflected variations from the draft handed up in Court that were either minor or reflected the striking out of parts that had, in the meantime, been the subject of final orders made on areas not in dispute and considered to be appropriate, as referred to below. That amended application, which is presently for determination, is also reproduced in full below.

The interlocutory applications

Roberts-Smith non-publication application

17    Mr Roberts-Smith seeks the following relief by way of his interlocutory application:

1.    Until further order, an order pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) that pages 1 to 55 of the confidential exhibit marked “MOBL 1” to the affidavit of Mark Geoffrey O'Brien affirmed on 10 August 2018 be the subject of a non-publication order on the ground that the order is necessary to prevent prejudice to the administration of justice.

2.    In the alternative to order 1 above, and until further order, an order pursuant to s 37AG(1)(b) of the Federal Court of Australia Act 1976 (Cth) that pages 1 to 55 of the confidential exhibit marked “MOBL 1” to the affidavit of Mark Geoffrey O'Brien affirmed on 10 August 2018 be the subject of a non-publication order on the ground that the order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national security.

3.    Until further order, an order pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) that the confidential affidavit of Mark Geoffrey O'Brien affirmed on 22 August 2018 be the subject of a non-publication order on the ground that the order is necessary to prevent prejudice to the administration of justice.

4.    In the alternative to order 3 above, and until further order, an order pursuant to s 37AG(1)(b) of the Federal Court of Australia Act 1976 (Cth) that the confidential affidavit of Mark Geoffrey O'Brien affirmed on 22 August 2018 be the subject of a non-publication order on the ground that the order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national security.

5.    Any order that the Court deems fit to make.

6.    Costs.

Commonwealth non-publication application

18    By way of its amended interlocutory application filed on 11 October 2018, the Commonwealth seeks the following relief (as noted below, proposed orders 1, 4 and 9 had already been made on 17 September 2018):

1.    There is to be no disclosure of information that identifies, or tends to identify, the persons, referred to in annexures B, C, F, H (at page 29, incorrectly marked as a second annexure G) and H (unpaginated two pages that follow page 31) to the Affidavit of Mark Geoffrey O'Brien affirmed on 10 August 2018 having the initials MF, GB, PC, AK, BH, TW, and Commander B. [Paragraph 1 was struck out in the filed amended document to reflect the order sought having already been made on 17 September 2018.]

2.    There is to be no disclosure of information that identifies, or tends to identify, the persons with the following initials referred to in Confidential Exhibit MOBL 1:

(a)     AB whose full name first appears on page 41 of Confidential Exhibit MOBL 1

(b)    GB whose full name first appears on page 39 of Confidential Exhibit MOBL 1

(c)    GD who is named on page 3 of Confidential Exhibit MOBL 1

(d)    JA whose full name first appears on page 40 of Confidential Exhibit MOBL 1

(e)    JK who is named on page 3 of Confidential Exhibit MOBL 1

(f)    JP whose full name first appears on page 38 of Confidential Exhibit MOBL 1

(g)    JP whose full name first appears on page 39 of Confidential Exhibit MOBL 1

(h)    KD whose full name first appears on page 41 of Confidential Exhibit MOBL 1

(i)     MA whose full name first appears on page 41 of Confidential Exhibit MOBL 1

(j)     MB who is named on page 3 of Confidential Exhibit MOBL 1

(k)     MF whose full name first appears on page 40 of Confidential Exhibit MOBL 1

(l)     OH who is named on page 3 of Confidential Exhibit MOBL 1

(m)    PC whose full name first appears on page 2 of Confidential Exhibit MOBL 1

(n)    PG whose full name first appears on page 41 of Confidential Exhibit MOBL 1

(o)    PO who is named on pages 2 and 3 of Confidential Exhibit MOBL 1

(p)    PS whose full name first appears on page 2 of Confidential Exhibit MOBL 1

(q)    RD who is named on page 4 of Confidential Exhibit MOBL 1

(r)    SB who is named on page 2 of Confidential Exhibit MOBL 1

(s)    SB whose full name first appears on page 40 of Confidential Exhibit MOBL 1

(t)     SL who is named on page 3 of Confidential Exhibit MOBL 1

(u)     WW who is named on pages 3 and 4 of Confidential Exhibit MOBL 1

3.    There is to be no publication of the information that is highlighted pink, yellow and green in the highlighted version of Confidential Exhibit MOBL 1 that has been provided to the Court by the Commonwealth (as amended).

4.    Order 1 does not prevent disclosures to and between the following people:

a.    Judges of this Court;

b.    necessary Court staff (including transcription service providers);

c.    the parties;

d.     legal representatives of the parties instructed in these proceedings and in related proceedings NSD 1485/2018, NSD 1486/2018 and NSD 1487/2018, including in-house counsel of the first respondent;

e.    Commonwealth Ministers;

f.    the Secretary of the Department of Defence, officers of the Department of Defence, and legal representatives of the Secretary, the Inspector General of the Australian Defence Force, and Assistant IGADFs; and

g.    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding.

[Paragraph 4 was struck out in the filed amended document to reflect the order sought having already been made on 17 September 2018.]

5.    Orders 2 and 3 do not prevent disclosures to and between the following people:

a.    Judges of this Court;

b.    necessary Court staff (including transcription service providers);

c.    the Applicant;

d.    legal representatives of the parties instructed in these proceedings and in related proceedings NSD 1485/2018, NSD 1486/2018 and NSD 1487/2018, including in­house counsel of the first respondent;

e.    Commonwealth Ministers;

f.    the Secretary of the Department of Defence, officers of the Department of Defence, and legal representatives of the Secretary, the Inspector-General of the Australian Defence Force, and Assistant IGADFs; and

g.    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding.

6.    Orders 1, 2 and 3 apply throughout the Commonwealth of Australia.

7.    Orders 1, 2 and 3 apply until further order.

8.    Insofar as orders 1, 2 and 3 are made pursuant to the Federal Court of Australia Act 1976 (Cth) they are made on the grounds referred to in s 37AG(1)(a), (b) and (c) of that Act.

9.    Following the making of orders 1, 2 and 3 the Commonwealth is to file a redacted version of the Mark Geoffrey O'Brien affidavit affirmed on 10 August 2018 which complies with order 1. The document to be filed shall not be a confidential document for the purposes of rule 2.32 of the Federal Court Rules 2011 and the Access to Documents and Transcripts Practice Note (GPN-ACCS). [Paragraph 9 was struck out in the filed amended document to reflect the order sought having already been made on 17 September 2018.]

10.    Following the making of orders 1, 2 and 3 the Commonwealth is to file a redacted version of Confidential Exhibit MOBL 1 which complies with orders 1, 2 and 3. The document to be filed shall not be a confidential document for the purposes of rule 2.32 of the Federal Court Rules 2011 and the Access to Documents and Transcripts Practice Note (GPN­ACCS).

19    At the hearing of the two non-publication applications, counsel for the Commonwealth advised that the suppression of the affidavit of Mr Adam Findlay affirmed 24 August 2018 (and ordered on an interim basis on the same day) was no longer pressed. As such, the interim suppression order made over that affidavit on 24 August 2018 was lifted.

20    Part of the relief sought by the two non-publication applications was granted with final orders made on 17 September 2018 by consent in respect of the identities of currently serving and active members of the Special Operations Command (active SOC personnel) and a particular Afghan commander, the Court being satisfied, by reference to the authority discussed below, that this was necessary in order to prevent prejudice to the interests of the Commonwealth in relation to both national and international security and to protect the safety of the persons whose identity was sought to be concealed, being the grounds in s 37AG(1)(b) and (c) respectively.

21    The remaining contest is in relation to information about the following persons, being information that goes beyond the identities of active SOC personnel and Afghan Commander B, in portions of Exhibit MOBL-1 to Mr O’Brien’s 10 August 2018 affidavit that:

(1)    identify particular persons having the initials AB, GB, GD, JA, JK, JP, KD, MA, MB, MF, OH, PC, PG, PO, PS, RD, SB, SL and WW; and

(2)    identify or provide contact details for three witnesses to the Inquiry able to give evidence only on a collateral issue, as opposed to substantive witnesses able to depose directly to the issues being examined by the Inquiry.

22    Documents were filed in a form that redacted both agreed portions that were the subject of the final orders made on 17 September 2018 and the portions remaining in dispute. Those redacted documents were made unrestricted documents for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth) and the Court’s general practice note, Access to Documents and Transcript Practice Note (GPN-ACCS). These reasons are therefore ultimately concerned with the final rulings to be made in relation to confirming (or otherwise) the agreed redactions and adjudicating upon the disputed redactions.

Legislative provisions

23    Section 37AE of the Act provides, at the commencement of Division 2 of Part VAA of the Act dealing with suppression and non-publication orders, an overarching statutory and primary objective (and thus a mandatory consideration, by reason of it being framed in such terms as “must take into account” and it being a section dealing with the statutory objective), to be taken into account in deciding whether to make such an order of safeguarding the interests of the public in open justice:

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

24    Section 37AF of the Act gives this Court the power to make such suppression or non-publication orders as are considered appropriate to prohibit publication or other disclosure of the following classes of information:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

It is not in dispute that all of the information that is presently sought to be the subject of a non-publication order falls within one or more of the above categories.

25    Section 37AG(1) of the Act provides that this Court may make a suppression or non-publication order on one or more of four stipulated grounds. Section 37AG(2) provides that any such non-publication order that is made must specify the ground or grounds upon which the order is made. The four stipulated grounds are as follows:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

26    Mr Roberts-Smith relies upon the grounds in s 37AG(1)(a) and (b). The Commonwealth relies upon the grounds in s 37AG(1)(b) and (c), but also supports Mr Roberts-Smith in his claim in reliance on s 37AG(1)(a). The issue for resolution is thus whether the non-publication orders sought, including their breadth, are necessary:

(1)    to prevent prejudice to the proper administration of justice;

(2)    to prevent prejudice to the interests of the Commonwealth in relation to national or international security; and/or

(3)    to protect the safety of any person.

27    As will be seen, ordering non-publication of the names of certain present or recently past military personnel to protect their safety is not in dispute, but there is a line-drawing dispute as to how far that should go.

Legal principles

28    The above provisions in Division 2 of Part VAA of the Act are substantially mirrored in State legislation to like effect, and most particularly in the Court Suppression and Non-Publication Orders Act 2010 (NSW). Both Acts are manifestations of model legislation developed by the Standing Committee of Attorneys-General: see the second reading speech to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011, House of Representatives, 23 November 2011 at p 13,553. Appellate cases on those provisions are therefore effectively binding on a single judge of this Court: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [57], citing Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; and CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [48]-[50], [63].

29    In any event, cases on the Court Suppression and Non-Publication Orders Act and on antecedent common law principles have been highly influential in cases decided in this Court on the scope and operation of this Court’s powers to make suppression or non-publication orders. It has not been suggested that this line of authority should not be followed.

30    The open justice primary objective provided for by s 37AE of the Act is a primary consideration, but not the primary consideration. It is undoubtedly an important mandatory consideration. However, as was pointed out in Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 at [87]:

A primary object for courts to fulfil is to provide an independent and impartial tribunal for the settling of disputes between parties. Fulfilment of such a purpose is best served by open and public hearings. However, the means of achieving the purpose must not be elevated above the purpose.

31    The principle of open justice is a means to an end, rather than an end in itself, with the rationale of the principle being the benefits of public and professional scrutiny of what takes place in, and the maintenance of public confidence in, the courts: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20]. There is a need to keep in mind the importance of the administration of justice and that inappropriate disclosure may adversely affect the interests of litigants and also adversely impact on other competing public interest considerations, including such things as national security: Hogan v Hinch at [21].

32    Aspects of those wider considerations are reflected in the grounds for making a non-publication order in s 37AG(1) of the Act, reproduced above at [25], provided that the test of necessity is met. As was pointed out in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]-[31], “necessary” is a strong word. The High Court was considering the meaning of “necessary” as it appeared in the former s 50 of the Act, which is the predecessor to s 37AF. It is insufficient that the making or continuation of a non-publication order appears to be convenient, reasonable or sensible. That reasoning is equally applicable to the present grounds for making or continuing a non-publication order under s 37AF(1) of the Act. In Hogan v Australian Crime Commission, it was also observed (at [42], footnotes omitted):

The administration of justice by the Federal Court … certainly includes not only the generally recognised interest in open justice openly arrived at …, but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information “is the subject matter of the proceedings”; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter.

33    The word “necessary”, although a strong word, must nonetheless not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at [8] per Bathurst CJ. In that paragraph, and in the prior case of R v Kwok [2005] NSWCCA 245; 64 NSWLR 335 at [13], a passage from John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161B was quoted with approval as to the meaning to be given to “necessary” in the phrase “necessary to secure the proper administration of justice”. That passage is of assistance in the context of the grounds in s 37AG(1) for which the presently sought non-publication orders must be found to be “necessary”:

This leads to the consideration of what is meant by “necessary to secure the proper administration of justice” in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or an analogous kind on which the principle stated by McHugh JA is based [being a reference to the scope of implied powers of inferior courts of record, considered in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476)].

34    In Ibrahim, Basten JA made the following pertinent observations about the evaluative exercise involved in deciding whether it is necessary to make a suppression or non-publication order (at [46]):

The meaning of “necessary” depends on the context in which it is used. In s 8(1) [the equivalent of s 37AG(1) of the Act], it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word “necessary” is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In par (a), the purpose of the order will be “to prevent prejudice to the proper administration of justice”. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered “necessary” in particular circumstances.

35    The notion that making an order may be necessary even it falls short of being essential finds some support from other contexts concerning the implication of a power to make an order in the first place. In the context of inferring a necessary implication for the existence of a power of an inferior court to grant an injunction, which is of some assistance by broad analogy in determining the metes and bounds of when making a suppression or non-publication order is necessary, it was observed in Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435 at [51] (omitting footnotes):

The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.

36    Returning to the context of ascertaining whether a suppression or non-publication order is necessary, in Hamzy v R [2013] NSWCCA 156, it was observed by Harrison J (at [60]):

The term “necessary” is not to be given a restricted meaning. It has to be interpreted and applied in context. … It is not in my view appropriate to balance or to calibrate the competing interests recognised by the [Court Suppression and Non-publication Orders Act 2010] … . If the potential publication of the applicant's evidence before the primary judge and in this Court raised even some doubt that his safety were compromised, he should in my opinion be given the benefit of that doubt when deciding the question of whether or not a suppression or non-publication order is necessary. I consider that the material does raise that doubt. The need to safeguard the public interest in open justice does not prevail in this case where in my opinion the s 8(1)(c) ground has been made out.

37    The principles to be derived from the above cases, and others besides, were summarised by Jacobson J in Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195 (at [23]-[31]):

First, the operative condition for making a suppression order under s 37AG of the FCA (and its analogue in s 8 of the court Suppression and Non-publication Orders Act 2010 (NSW) (the CSPO Act) is that the order be “necessary” to prevent prejudice to the administration of justice. This is a strong word which reinforces the legislative intention that suppression orders should only be made in exceptional circumstances: Rinehart) in which a suppression order was refused: at [27].

Second, the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. Departure from it may only be justified where its observance would frustrate the administration of justice or some other public interest for whose protection parliament has modified the open justice rule: Rinehart at [29] and [32].

Third, the necessity principle is reinforced by the requirement stated in s 37AE of the FCA (and s 6 of the CSPO Act) that the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart at [32].

Fourth, the necessity principle encapsulates as its final and paramount consideration the need to do justice. Publication is a means to that end and can only be avoided where necessity compels departure from the open justice principle: Rinehart at [30].

Fifth, the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by all members of the public: Rinehart at [33].

Sixth, in general parties have to accept the embarrassment and damage to their reputation, and the possibility of consequential loss, which may be inherent in being involved in litigation. It is the price of open justice that allegations about parties are aired in open court. Those parties can make their response in the same forum and if the media publishes the allegations it would ordinarily be obliged to publish the response: Rinehart at [54].

Seventh, there are a number of recognised exceptions to the principles of open justice. They include cases where the openness of the proceedings would destroy the attainment of justice by vindicating the activities of a blackmailer and cases where disclosure of the information would seriously affect the commercial value of the subject matter by revealing secret processes or confidential business information to competitors: Rinehart at [34]–[37].

Reference should also be made to the observation of Spigelman CJ in John Fairfax at [99] that in a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right:

[99] … as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice.

It should also be observed that, in this court, the open justice principle is ordinarily engaged when proceedings are commenced: see r 2.32(2)(a) of the Federal Court Rules 2011. See also Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293; 233 ALR 88; 96 ALD 300; [2006] FCA 836 at [23]. The only exception to this is that a non-party (including the media) is not entitled to inspect a document listed in r 2.32 that the court has ordered to be confidential: see r 2.32(3) of the Federal Court Rules.

38    In the context of the foregoing, I interpret the requirement in s 37AE of taking into account in deciding whether or not to make or continue a non-publication order that a primary objective of the administration of justice is to safeguard the public interest in open justice, as being a requirement to weigh this consideration in the balance of assessing whether such an order is necessary, rather than being some standalone requirement that operates in the nature of a veto. Once such a finding of necessity is made, no further or separate consideration of the needs of open justice is required. This weighing exercise is not confined to the ground in s 37AG(1)(a), but extends also to paragraphs (b), (c) and (d).

Submissions

Applicant’s submissions

39    By way of written submissions pertaining to his non-publication application only, Mr Roberts-Smith submits that the issue of whether the orders he seeks should be made is one that should more properly be addressed by the Commonwealth, as his application was filed to protect the interests of the IGADF and the Australian Defence Force (ADF).

40    Mr Roberts-Smith submits that Exhibit MOBL-1 contains sensitive ADF documents relating to the Inquiry, as well as confidential correspondence passing between his solicitor and the Assistant IGADF regarding his potential involvement in the Inquiry. In certain important respects, it appears to go further than what has been published thus far. As the matter has unfolded, the real dispute has become the extent to which that additional material should be redacted by reason of non-publication orders.

41    Mr Roberts-Smith further notes that paragraphs 9 to 13 of the confidential affidavit affirmed by his solicitor, Mr Mark O’Brien, on 22 August 2018, describe the Inquiry and its conduct in private, as per the determination of the IGADF pursuant to reg 19 of the IGADF Regulation. In that regard, Mr Roberts-Smith highlights the issuance of directions by the Assistant IGADF to witnesses to the Inquiry not to disclose the contents of their evidence to persons other than their legal advisers or confidential counsellors, with criminal sanctions available for non-compliance, and notes that those directions have been issued pursuant to reg 21(1) of the IGADF Regulation, a course available where “it is necessary to do so in the interests of the defence of the Commonwealth” (emphasis added).

42    Mr Roberts-Smith submits that, in making the assessment as to whether non-publication orders should be made of the kind that he and the Commonwealth seek, the Court should give significant weight to the fact that the IGADF has made a decision to exercise a statutory power to conduct the Inquiry in private (applying a significant public interest threshold), and the fact that non-compliance with the Assistant IGADF’s direction pursuant to reg 21(1) attracts a criminal sanction. He submits that allowing the need for confidentiality within a process provided for by a Commonwealth statutory regime to be thwarted by the principle of open justice arising under a different statutory regime would be an “odd result”, particularly where Mr Roberts-Smith’s substantive complaint concerns the respondents’ conduct in allegedly breaching confidentiality obligations applicable to the Inquiry. He submits that permitting the unrestricted publication of the documents would defeat the underlying purpose of the IGADF statutory regime and the substantive proceedings. It may be observed that none of those submissions can be accepted unless the test of necessity is met in relation to one of the grounds in s 37AG(1) of the Act. The test of necessity in reg 21(1) is relevant, but it is required to be applied in a very different administrative, rather than curial, context. In that context, there is not the same longstanding and fundamental concern with administrative actions and adjudications being ordinarily open to the public gaze, except as provided for by statute.

43    Mr Roberts-Smith submits that, in any event, the Court’s jurisdiction to make non-publication orders is sufficiently enlivened by the fact that the documents relate to matters of national and public interest, insofar as they concern a statutory inquiry being conducted in private in relation to ADF operations and personnel, and that the Inquiry is examining matters of contested evidence in relation to field operations and involves the calling and examination of witnesses. Again, it needs to be kept steadily in mind that this is an administrative, rather than curial, process.

44    Finally, Mr Roberts-Smith submits that, should the Court refuse to make the non-publication orders he seeks, there is a strong likelihood that some of the information contained within those documents will be published by the media.

45    By way of oral submissions, counsel for Mr Roberts-Smith indicated that he did not oppose the non-publication orders sought by the Commonwealth, and adopted the Commonwealth’s position with respect to the more limited redactions that the respondents have suggested will suffice.

Commonwealth’s submissions

46    The Commonwealth supports Mr Roberts-Smith’s application based on the s 37AG(1)(a) ground of preventing prejudice to the proper administration of justice by reference to factors that, if found to be applicable, make the scope of this consideration broader than it might at first appear. Those factors are:

(1)    the concept recognised in BUSB v R [2011] NSWCCA 39; 80 NSWLR 170 at [37], in the context of the implied powers of the District Court of New South Wales, that the administration of justice is to be regarded as a “continuous process not confined to the determination of a particular case”;

(2)    the preparedness of Hodgson JA in Attorney-General for New South Wales v Nationwide News Limited [2007] NSWCCA 307; 178 A Crim R 301 at [38] to hold that the administration of justice could extend to the detection and investigation of crime and the obtaining of evidence against suspects; and

(3)    the conclusion that the expression “the course of justice” is synonymous with the expression “the administration of justice” in R v Rogerson (1992) 174 CLR 268 at 276, and the temporal extension of the concept of “the course of justice” to the period prior to the commencement of proceedings for the purposes of the offence of attempting or conspiring to pervert the course of justice (at 277-278).

47    The relevance of this broader concept of the proper administration of justice, according to the Commonwealth, is that:

(1)    given that the Inquiry, which was established in 2016, was to “inquire into what, if any, substance there is to reports and rumours of breaches of laws of armed conflict by or concerning the Special Operations Task Group deployments in Afghanistan during the period 2005 to 2016, and events and issues which contributed to them” (a description derived from a letter sent to Mr O’Brien by a Colonel Vagi on behalf of the IGADF dated 27 July 2018, which was not ultimately sought to be the subject of a non-publication order);

(2)    given the options available to the Inquiry; and

(3)    given that the Inquiry could lead to charges being laid under a provision in Division 168 of the Criminal Code (Cth), which concern genocide, crimes against humanity, war crimes and crimes against the administration of justice of the International Criminal Court (thus invoking a possible curial dimension),

any interference with the course of the Inquiry, or anything done to frustrate, impede or interfere with its integrity would, or would likely, amount to prejudicing the proper administration of justice.

48    The Commonwealth argues that the disclosure of documents that reveal who has been a witness, the precise terms of reference of the Inquiry or that reveal lines of inquiry are likely to frustrate or at least hinder the Inquiry by putting potential witnesses on notice. In this regard, the Commonwealth relies upon National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, albeit in relation to a procedural fairness issue (at 323-4):

It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment.

49    The Commonwealth submits that such concerns were one of the reasons that the reg 19 determination was made to conduct the Inquiry in private, one of the reasons that the reg 21(1) direction was given to witnesses not to disclose their evidence, and why some of the documents are classified as “Protected”. This circumstance brings into play the reasoning in the quote from John Fairfax Group v Local Court reproduced at [33] above that “if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court”. Thus, the Commonwealth reasons, the non-publication orders sought are indeed necessary to prevent prejudice to the proper administration of justice in its broader sense.

50    After the making by consent of final non-publication orders in respect of the information which it was not disputed should be the subject of such orders, the remaining part of the Commonwealth’s non-publication application is, as noted above, confined to preventing the disclosure of information that identifies, or tends to identify, particular persons with particular initials: see the terms of [2] and [3] of the amended application, reproduced at [18] above. The reasons for seeking those additional orders, as well as the consent orders, were set out in the affidavit of Major General Findlay. I accept that Major General Findlay is a very senior officer of the Australian Army, well placed to give the evidence that he does, and that his evidence should be given substantial weight. No party suggests otherwise, although the non-party news publishers were not in a position to express any contrary view due to not having seen the unredacted material in question about which he deposed. The Commonwealth submits that Major General Findlay’s affidavit demonstrates that the orders sought are necessary in order to prevent prejudice to the interests of the Commonwealth in relation to both national and international security and to protect the safety of the persons whose identity is sought to be concealed. The conclusions I reach based on this evidence and on the competing submissions are set out at [60]-[63] below.

Respondents’ submissions

51    The respondents do not dispute that there is a necessity for non-publication orders to be made to protect the legitimate interests of the Commonwealth. However, they contend that the additional orders sought go further than is necessary to protect those interests and, in that regard, rely upon the principles of open justice as to why such further orders ought not be made in the full form sought by the Commonwealth and by Mr Roberts-Smith.

52    The respondents submit, and I accept, that whether and, if so, what kind of additional non-publication orders should be made depends on the nature of the orders sought and whether any legitimate objective can be achieved by alternate means. For example, redaction may limit the scope of any non-publication order made. Similarly, there may be scope for temporal restriction on such orders such that they do not operate any longer than is truly necessary. The extent to which the respondents resist the making of the non-publication orders sought is ultimately quite limited, largely due to the pragmatic and cooperative stance taken by Mr Roberts-Smith, the Commonwealth and the respondents. The non-party news publishers were more limited in the contribution they were able to make, not having seen the information in question, but nonetheless made a positive contribution to the resolution of a difficult issue.

53    A significant objection that is maintained by the respondents is that the identities of three witnesses or prospective witnesses to the Inquiry, who could do no more than provide information that might in some way help to identify whether and, if so, who among the substantive witnesses to the Inquiry had not kept their evidence confidential as required, do not meet the threshold of necessity with respect to the making of a non-publication order. It is submitted that they are not themselves able to give evidence going to the substance of the Inquiry, and are not persons otherwise said to be at risk of harm. I do not find the arguments of either Mr Roberts-Smith or the Commonwealth to the contrary on this topic to be compelling, especially given the elapse of time both up to the date of the interlocutory hearing and in the intervening period to judgment. It suffices for present purposes to find that I am not satisfied that the test of necessity has been met in respect of those three individuals and, accordingly, I decline to make any non-publication order in respect of their identities. This conclusion is reflected in rulings set out below, commencing at [60]. However, I am satisfied that it is necessary that their contact details not be disclosed, as that may reasonably be seen to impede the assistance that they can give, or would be willing to give, to the Inquiry. The respondents did not argue otherwise.

Non-party news publishers’ submissions

54    The non-party news publishers’ submissions do not resist an order that the names of any active SOC personnel be redacted from any document to which the Court grants them access. However, noting that they have not been served or otherwise provided with a copy or access to an unredacted copy of Exhibit MOBL-1 and are unaware of its redacted contents, the non-party news publishers otherwise oppose the orders sought by the Commonwealth. They submit that whilst it might be accepted that an order prohibiting the publication of names of active SOC personnel would be necessary to protect their safety as the threat to their safety might otherwise increase, the Commonwealth has failed to establish that the orders sought by it beyond that are necessary.

55    The non-party news publishers also submit that the Commonwealth has failed to establish that the revelation of the detailed terms of reference of the Inquiry would compromise the integrity of the Inquiry, or that the publication of Exhibit MOBL-1 would otherwise interfere with the course of the Inquiry. They submit that affidavit evidence from Mr Jankie establishes that the Inquiry and Mr Roberts-Smith’s response to it have been the subject of detailed media reporting already, and that on 1 September 2017, a media release was published on the defence.gov.au website providing some detail as to the nature of the Inquiry and inviting relevant information from the public for its purposes.

56    The non-party news publishers deride Major General Findlay’s affidavit as doing no more than advancing theories as to the risks of safety to ADF personnel in the Special Operations Command based solely upon the fact of membership of that part of the ADF, as opposed to some other peculiar fact. They submit that whilst the Court might draw certain conclusions as to the risk to safety for active SOC personnel in combat zones if they are identified, the same conclusions cannot be made in respect of other personnel who are former members or not on active duty. They submit that the views expressed in Major General Findlay’s affidavit do not provide a sufficient basis for the Court to conclude that a risk to safety exists, and constitute nothing more than his beliefs as to the possibility of a risk. As such, it is submitted that it cannot be said that a threat to safety is imminent so as to require the intervention of the Court.

57    Reliance is placed by the non-party news publishers on D1 v P1 [2012] NSWCA 314 and R v AB [2018] NSWCCA 113, with particular reliance placed upon the evaluative exercise carried out by the New South Wales Court of Appeal and New South Wales Court of Criminal Appeal respectively in those two cases. However, I do not find either of those cases to be of particular assistance in the circumstances of this case, beyond providing broad statements of principle of the kind detailed at some length above. That is not due to any shortcoming or inadequacy of the reasoning in those cases, but, rather, that the circumstances in each were profoundly different, dealing as they did with non-publication orders in the context of the prosecution of domestic sexual offences, and not with the type of matters deposed to by Major General Findlay.

58    In my view, the affidavit evidence of Major General Findlay goes well beyond establishing that the proposed non-publication orders are merely convenient, reasonable or sensible. To the contrary, that evidence demonstrates a real and reasonable basis for concern of quite dire consequences if the identities of the personnel he deposes to are revealed. The higher the evident real possibility of a risk of harm, the more readily or more easily a finding of necessity will be made: Hamzy v R at [60], quoted above at [36]. It is essentially a balancing of the level of risk identified (and the basis for forming that conclusion) with the consequences if that risk is realised. In this case, Major General Findlay has a sound basis, borne of substantial relevant knowledge and experience of the past and current practices of the ADF, for the risk assessment he advances to establish the nature of the risks at play. He points to circumstances in which even family members of deceased personnel have been harassed, intimidated or threatened and points to serious and severe consequences if any of the risks that he identifies come to pass. In those circumstances, I have little hesitation in finding that the threshold of necessity has been reached. That is, the risks established on the evidence are unacceptable, even if they cannot, by their very nature, be stated with a high degree of certainty.

59    The non-party news publishers submit that the fact that former Special Operations Command personnel have been publicly identified in the past tends to a conclusion that the risk to their safety reduces or evaporates at the end of active duty, citing public references to such personnel in annexures to Mr Jankie’s affidavit. However, a careful examination of that affidavit and the annexures to it reveals that the personnel referred to are those who have either voluntarily assumed that risk, which is hardly evidence that it does not exist, or personnel who have not been serving for a considerable period of time. I do not consider that that evidence goes in any meaningful way towards countering the evidence of Major General Findlay.

Findings and rulings

60    The particular paragraphs of Major General Findlay’s affidavit relied upon by the Commonwealth, and supported by Mr Roberts-Smith, establish to my satisfaction the following:

(1)    Special Operations Command personnel have a particular role in relation to Australia’s response to violent extremism both in Australia and overseas, as well as other special activities pertinent to Australian and international security interests, and have access to potentially valuable information, all of which make them targets;

(2)    the capacity for enemies of Australia or Australian interests to use sophisticated data analysis by which disparate items of information can be assembled means that an immediate risk does not have to be identified in order for the release of information of the kind sought to be protected to increase the risk of harm in the future – that is, the adverse value of such information is contextual and cumulative;

(3)    the ADF goes to considerable lengths to ensure that the identities of Special Operations Command personnel are kept confidential unless they are deceased, and even then only makes their identities public with the consent of their families, noting that there have been instances of such family members subsequently being contacted, harassed, intimidated and threatened;

(4)    the persons identified with the initials AK, GB, MF and PC are active SOC personnel, performing elite special operations functions both in Australia and overseas of a kind that exposes them and their families to a particular and significant risk of harm if their identities are known – that conclusion supported the non-publication orders already made by consent in respect of those individuals;

(5)    the persons identified with the initials BH and TW are former members of the Special Operations Command, but by reason of previously (and, I infer, not in the distant past) having performed elite special operations functions both in Australia and overseas of a kind that would expose them and their families to a particular and significant risk of harm if their identities were to be known, remain at a sufficiently high level of risk to be materially indistinguishable from active SOC personnel – that conclusion supported the non-publication orders already made by consent in respect of those individuals;

(6)    on limited occasions, the identities of serving or former Special Operations Command personnel have been made public, but this has not been done lightly and significant care has had to be taken to consider and ensure their ongoing safety and that of their families; and

(7)    disclosing the identity of Afghan Commander B would not only expose him to danger, but would also undermine the prospect of securing assistance and cooperation from like persons in the future if it were believed that their identities would not be protected, a rationale akin to that supporting public interest immunity protection of the identity of informers – that conclusion supported the non-publication orders already made by consent in respect of Afghan Commander B.

61    I am therefore satisfied that the Commonwealth has made good its case that it is necessary, in order to prevent prejudice to the interests of the Commonwealth in relation to both national and international security and to protect the safety of the persons whose identity is sought to be concealed, that there be no disclosure of information that identifies, or tends to identify, the additional persons having the initials AB, GB, GD, JA, JK, JP, KD, MA, MB, MF, OH, PC, PG, PO, PS, RD, SB, SL and WW. A proper case for non-publication orders over that information has been made out.

62    The conclusions I have reached as to redactions are as follows:

(1)    The redactions agreed to by the Commonwealth, Mr Roberts-Smith and the respondents as to the redaction of Special Operations Command personnel identification, and opposed by the non-party news publishers insofar as they go beyond active SOC personnel, should be approved upon the ground that they are necessary to prevent prejudice to the interests of the Commonwealth in relation to national and international security.

(2)    The redactions agreed to by the Commonwealth, Mr Roberts-Smith and the respondents as to the names of substantive witnesses at the Inquiry, and opposed by the non-party news publishers, should be made on the ground that they are necessary to prevent prejudice to the proper administration of justice insofar as that pertains to the Inquiry, but should not endure for more than two months after the delivery of the final Inquiry report to the Federal Government, except insofar as they are in the category of persons in the preceding subparagraph (1).

(3)    The redactions agreed to by the Commonwealth, Mr Roberts-Smith and the respondents as to the redaction of contact details for three collateral witnesses, ostensibly opposed by the non-party news publishers, should be approved upon the ground that they are necessary to prevent prejudice to the proper administration of justice insofar as that pertains to the Inquiry, and for the future interest of the proper administration of justice in securing the cooperation of like witnesses to such an inquiry.

(4)    The redactions sought by the Commonwealth and Mr Roberts-Smith as to the names of three collateral witnesses to the Inquiry, and opposed by the respondents (and ostensibly by the non-party news publishers), should not be granted. An insufficient case has been made for such a redaction to be necessary to prevent prejudice to the proper administration of justice.

(5)    The redactions agreed to by the Commonwealth, Mr Roberts-Smith and the respondents as to a notice addressed to Mr Roberts-Smith under s 23(3) of the IGADF Regulation (the notice), identified in a copy marked in green and yellow by the Commonwealth and commencing at page 38 of Exhibit MOBL-1, should only be partially granted as follows, upon the ground that they are necessary to prevent prejudice to the proper administration of justice insofar as that pertains to the Inquiry, but should not endure for more than two months after the delivery of the final Inquiry report to the Federal Government:

(a)    no redaction of the yellow-marked portions of the notice on page 38 of Exhibit MOBL-1, which identifies Mr Roberts-Smith as being a person who is the subject of a notice to provide information and produce documents, contrary to the position of the Commonwealth and the respondents, and at the end of the notice (page 42 of Exhibit MOBL-1), which sets out, amongst other things, when and how Mr Roberts-Smith was to comply with the notice;

(b)    redaction in full of the green-marked portions of the notice, which set out the basis for the issue of the notice and the matters to which Mr Roberts-Smith was required to respond pursuant to the notice, contrary to the position taken by the respondent. This ruling is made upon the basis that this material goes beyond the question of complaint and in substance goes into aspects of the content of the Inquiry. Accordingly, the redaction is necessary to safeguard the interests of the administration of justice (in the Rogerson sense of the “course of justice”) while the Inquiry is continuing; and

(c)    redaction of references in communications between Mr O’Brien and the Assistant IGADF that reveal the information in (b) above, but no further.

(6)    The redactions sought by the Commonwealth and Mr Roberts-Smith as to communications between the Commonwealth or Mr Roberts-Smith and representatives of the respondents, being opposed by the non-party news publishers, going to the issue of Mr Roberts-Smith being or being likely to be a witness should be refused, as the fact of him being a witness is now public knowledge and it has not otherwise been established that this redaction is necessary to prevent prejudice to the proper administration of justice.

63    The above redactions do not preclude a fresh non-publication order application being made, including an application to extend the duration of non-publication orders pertaining to the Inquiry beyond two months after the final Inquiry report has been delivered.

64    Mr Roberts-Smith, the Commonwealth and the respondents are directed to confer and, within seven days, furnish agreed or competing draft orders giving effect to these reasons.

Associate:

Dated:    11 December 2018

SCHEDULE OF PARTIES