Federal Court of Australia
Roberts-Smith v Fairfax Media Publications Pty Limited (No 18)  FCA 793
NSD 1486 of 2018
THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
NSD 1487 of 2018
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The Amended Interlocutory application dated 25 June 2021 and issued by Persons 5, 11 and 35 be dismissed.
2. Persons 5, 11 and 35 pay the respondents’ costs of the application.
1 These proceedings are three defamation proceedings brought by the applicant who was formerly a member of the Special Air Services Regiment (SASR) in the Australian Defence Force (ADF). The respondents to the proceedings are media companies and journalists who wrote or published print and online articles said to have been of and concerning the applicant. The applicant alleges that the articles give rise to serious imputations of murder, or involvement in murder, by the applicant while he was serving in Afghanistan and an act of domestic violence by the applicant in Australia in 2018. The respondents plead justification (Defamation Act 2005 (NSW) s 25) and contextual truth (Defamation Act s 26) in defence of the applicant’s claim. Further details of the applicant’s claim and the respondents’ defences to it are set out in reasons for judgment which I have previously published in these proceedings and, in particular, Roberts-Smith v Fairfax Media Publications Pty Limited (No 5)  FCA 1067.
2 In May 2016, the Inspector-General of the Australian Defence Force (IGADF) at the request of the Chief of Army commenced an inquiry to ascertain whether there is any substance to rumours of allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (the Inquiry). The Inquiry was conducted under the provisions of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (the Regulation) having been established under a previous regulation. Further details of the nature of the Inquiry, the circumstances surrounding it, including the stage it had reached at the time of the judgments, are set out in Roberts-Smith v Fairfax Media Publications Pty Limited (No 6)  FCA 1285 and Roberts-Smith v Fairfax Media Publications Pty Limited (No 8)  FCA 1630 (Roberts-Smith (No 8)).
3 Persons 5, 11 and 35 are former members of the SASR and ADF. They are on the applicant’s list of potential witnesses to give evidence in response to the respondents’ evidence in support of their defences of justification and contextual truth (see my ruling as to the order in which the parties are to call evidence at the trial: Roberts-Smith v Fairfax Media Publications Pty Limited (No 13)  FCA 549).
4 No doubt to preserve the integrity of an inquiry in appropriate cases, the IGADF has the power to make directions that oral evidence given during the inquiry not be disclosed and it is an offence under s 21(3) of the Regulation to contravene such a direction. Such non-disclosure directions were made in the case of the Inquiry.
5 The applicant has filed an outline of evidence in relation to each of Persons 5, 11 and 35. Those outlines indicate that each of those persons is proposing to give evidence in relation to one or more of the incidents particularised by the respondents as incidents in which the applicant murdered, or was involved in the murder of, an Afghan person.
6 Each of the applicant, Person 5, Person 11 and Person 35 has appeared before the Inquiry and answered questions. Each of them was under a legal obligation to answer the questions (ss 22 and 23 of the Regulation). The privilege against self-incrimination was abrogated (s 32(1) of the Regulation) and it was an offence to fail to answer questions (s 29 of the Regulation).
7 On or about 1 June 2021, the respondents served a subpoena to produce documents in the proceedings on the IGADF. The documents described in the subpoena were identified by categories and the relevant categories for present purposes are those set out in paragraphs 3, 4 and 6. Paragraph 3 relates to Person 5 and is in the following terms:
3. A record of any communication (including a question or answer in an interview) between the IGADF and Person 5 in relation to the following topics:
i. whether Person 5 had communicated with any other person about Person 5’s evidence to the IGADF Inquiry;
ii. whether Person 5 had communicated with any other person about the evidence of any other person to the IGADF Inquiry;
iii. whether Person 5 had provided to the Inquiry all documents responsive to any notice to produce documents issued under s 23 of the IGADF Regulation.
There is an equivalent paragraph for Person 11 (paragraph 4) and Person 35 (paragraph 6). I will refer to the material identified in the subpoena as the compelled evidence.
8 Persons 5, 11 and 35 are represented by the same legal practitioner and counsel and they issued an Interlocutory application on or about 25 June 2021 seeking an order setting aside paragraphs 3, 4 and 6 of the subpoena insofar as they seek any part of their respective interviews with the IGADF, that is, the compelled evidence. For convenience, I will, from this point, refer to Persons 5, 11 and 35 as the third parties.
9 There is power to make an order setting aside a subpoena or paragraphs therein in r 24.15 of the Federal Court Rules 2011 (Cth) and the respondents take no issue with the standing of the third parties to seek such an order. In any event, it seems to me that the third parties have a sufficient interest within the rule to seek an order setting aside the paragraphs in the subpoena.
10 I put in place a regime whereby written submissions were made with respect to the third parties’ application and an order was made that it be determined on the papers. The main protagonists, that is, the third parties and the respondents each filed written submissions. The applicant did not file any written submissions and the IGADF filed submissions for the purpose of assisting the Court on the question of statutory construction which arises. The third parties filed submissions in reply, although that was not part of the regime. Nevertheless, I have considered those submissions.
11 The third parties submit that the compelled evidence is sought by the respondents to impugn the credit of each of them and to provide evidence of collusion. They also submit that the compelled evidence may be used against them in cross-examination in these proceedings or in subsequent proceedings to allege a potential breach of s 21(3) of the Regulation (i.e., contravening a non-disclosure direction). The third parties point to the fact that the respondents have acknowledged that they are not entitled to the material in paragraph 2 of the subpoena which relates to any communication between the IGADF and the applicant, but is otherwise equivalent to paragraphs 3, 4 and 6 of the subpoena.
12 The grounds advanced by the third parties in support of their application for an order seeking to have paragraphs 3, 4 and 6 of the subpoena set aside may be summarised as follows:
(1) the production of the compelled evidence pursuant to the subpoena will contravene s 124(2CA) of the Defence Act 1903 (Cth) and s 32(2) of the Regulation;
(2) the production of the compelled evidence is inconsistent with the ruling as to public interest immunity made by Colvin J in Roberts-Smith (No 8);
(3) the third parties have objected to certain redactions in the compelled evidence because they have the effect that “some of their proposed releases are outside the scope of the subpoena”;
(4) some of the redactions made in the compelled evidence remove or affect the context in which information was given and, therefore, those redactions raise issues of unfairness to the third parties.
13 The main ground advanced by the third parties is that identified in paragraph (1). Nevertheless, it is convenient for me to deal with the submissions in paragraphs (2), (3) and (4) first and then return to the submission in paragraph (1).
14 With respect to the claim that the compelled evidence should not be produced because it is covered by public interest immunity, the third parties point to Roberts-Smith (No 8) in which Colvin J, in addressing claims of public interest immunity, said (at –):
16 Having considered the further confidential affidavit material, I am satisfied that public interest immunity extends to the Third Party Information. To be specific, public interest immunity has been demonstrated in respect of information of the following kind:
(1) Information acquired compulsorily by the Inquiry from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes.
(2) Information acquired by the Inquiry derivatively (directly or indirectly) from persons other than Mr Roberts-Smith who, in the reasonable assessment of the IGADF by relevant officers, may themselves be the subject of future criminal processes.
(3) Responses to the Inquiry from Mr Roberts-Smith that restate or indicate any of the matters in (1) or (2).
(Further Excluded Category)
17 As to the Further Excluded Category, I am satisfied that a balancing of the competing public interests of the kind described in my earlier decision leads to the conclusion that there is a sufficient risk that the information might be used by the respondents in the conduct of their defence of the defamation proceedings in a manner that might result in an application to permanently stay any criminal proceedings against those third parties and that there is a substantial public interest in taking steps to maintain confidentiality to prevent that risk becoming manifest in the particular circumstances revealed by the confidential affidavit material. In reaching that conclusion I have formed the view that the information is of a kind that once known to those acting for the respondents it might be deployed unconsciously or indirectly in the forensic task of conducting the respondents' defence. There is also the risk of inadvertent disclosure which could have consequences for establishing any criminal responsibility.
15 The respondents accept that Colvin J upheld a public interest immunity claim by the IGADF over the material that includes the compelled evidence. However, they submit that since the decision in Roberts-Smith (No 8), further information has emerged suggesting that the applicant may have communicated with Persons 5, 11 and 35 in respect of the subject matter of their evidence in this proceeding and before the IGADF. The respondents issued a fresh subpoena and the IGADF is no longer asserting a claim for public interest immunity.
16 The fact that the Commonwealth or the IGADF no longer claims public interest immunity over the compelled material is highly significant. Although a third party may assert public interest immunity in material, it would require exceptional circumstances for the Court to intervene at the request of a third party where the relevant authority has considered the question and decided that no action should be taken (Sankey v Whitlam (1978) 142 CLR 1 at 44–45 per Gibbs ACJ; at 68–69 per Stephen J). The difficulty for the third parties in this case is that they have adduced no evidence whatsoever to suggest that there are any exceptional circumstances in this case. I would not set aside the subpoena on this ground
17 With respect to the third and fourth grounds, I have not seen the redactions to which reference is made in the written submissions or the correspondence which the third parties say they have sent to the IGADF and which the IGADF contends has now been properly answered. If there are any remaining issues here, the third parties must identify an appropriate mechanism for them to be dealt with. That might mean that evidence will need to be filed and consideration given to whether the issue should be referred to another judge. What is important at this point is that I do not consider that these matters, even if they have merit, provide a basis for setting aside the relevant paragraphs in the subpoena.
18 I turn to the main ground advanced by the third parties.
19 Section 124(2CA) of the Defence Act provides as follows:
(2CA) If a witness makes a statement or disclosure in the course of giving evidence before the Inspector General ADF or a person appointed under section 110P:
(a) the statement or disclosure; and
(b) the making of the statement or disclosure; and
(c) any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure;
are not admissible in evidence against the witness in:
(d) any civil or criminal proceedings in any federal court or court of a State or Territory; or
(e) proceedings before a service tribunal;
other than in proceedings by way of a prosecution for giving false testimony at the hearing before the Inspector General ADF or person appointed under section 110P.
20 Section 32 of the Regulation abrogates the privilege against self-incrimination in the case of a member of the ADF or a person giving information, producing documents or answering questions in connection with an inquiry being conducted by the IGADF (ss 22 and 23 of the Regulation). However, it does so on the basis the information given or the document or thing produced, or giving the information or producing the document or thing, and any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing are not admissible in evidence against the individual in any civil or criminal proceedings. Section 32 of the Regulation relevantly provides:
(1) A person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
(a) the information given or the document or thing produced; and
(b) giving the information or producing the document or thing; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing;
are not admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony that relates to section 22 or 23.
21 It is a common feature of legislation that abrogates the privilege against self-incrimination that it also provides compensatory protection. The High Court said in Sorby v The Commonwealth  HCA 10; (1983) 152 CLR 281 (at 310–311):
Nevertheless, the presence of s 14(2) then provokes the question: What purpose is the sub-section intended to serve if it is not to protect the witness from the consequences of abrogation of the privilege? When a legislature abrogates the privilege against self-incrimination it often gives compensatory protection to the witness by providing, as s 14(2) does, that an answer shall not be admissible in civil and criminal proceedings other than in proceedings for contempt or for an offence under the Act: see, for example, s 17 of the Royal Commissions Act 1923 (NSW) as amended…
22 The primary battleground between the parties on this application concerns the meaning of the phrase in s 32 of the Regulation, “against the individual in any civil or criminal proceedings”. The third parties submit that “against” the individual should be broadly interpreted to mean “in any way against that person’s interest” and in support of that proposition they rely on the remarks of Young JA in Hatfield v TCN Channel Nine Pty Ltd  NSWLR 506;  NSWCA 69 (Hatfield) at – (McColl JA and Sackville AJA agreeing). The respondents, on the other hand, submit that the legislative provisions go no further than precluding the admission into evidence of compelled evidence where it is sought to be relied on in proceedings against the individual to establish his or her civil or criminal liability.
23 The third parties sought to gain support for their construction of the relevant provisions from the fact s 32 of the Regulation was designed to extend the reach of the compensatory protection beyond that which existed prior to the enactment of the Regulation. They referred to the following passages in the Explanatory Memorandum that explained the sections in the Regulation:
The Inspector-General ADF’s functions involve inquiring into events relating to the ADF, including service-related deaths and matters essential to the oversight of the military justice system. Ascertaining the true causes of significant events involving ADF members is frequently more important than possible prosecution of, or civil suit against, individuals. Compelling individuals to provide information about an event, even though it could implicate them in wrong-doing, while also protecting the information from subsequent use in criminal or civil proceedings, is an important mechanism to obtain information.
Although this section has the effect of removing the common law privilege against self-incrimination in inquiries conducted by the IGADF, an inquiry officer or an Assistant IGADF, the section generally reflects previous regulation 96 of the Defence (Inquiry) Regulations 1985, but broadens the protection for the person from certain derivative uses of the information they give, or documents or things they provide to an inquiry, which is currently limited to statements or disclosures made by a witness in the course of an inquiry...
24 I do not think that these passages assist the third parties with respect to the point presently under consideration. It is true that the compensatory protection is expanded by s 32, but not in relation to the concept of “against” the person, but rather in terms that mean the information, document or thing includes information, documents or things that were derived, directly or indirectly, from the original information, document or thing (s 32(2)(c)).
25 The third parties submit that a provision providing compensatory protection should, because of its nature, be given a broad and generous interpretation. That is true to a point, but as Campbell J noted in Feldman v Nationwide News Pty Ltd  NSWSC 715 (Feldman at first instance) at  and , that approach has to be considered in the context of the actual language used by the Parliament in enacting the provision.
26 The other points relied on by the third parties and my responses to them are as follows:
(1) Section 32(2) does not use the words “the individual who is a party to civil or criminal proceedings”. That is true, but it does not seem to me to advance the matter very far, if at all;
(2) If the compelled evidence is produced and used, there is a “significant and grave risk” that derivative use will be made of the compelled evidence in this proceeding or “possible subsequent criminal or regulatory proceedings”. I am not sure that I understand the full import of this submission, but to the extent I do, I think it is answered by the fact that s 32(2)(c) represents the Parliament’s response to the risk of derivative uses outflanking the compensatory protection;
(3) There is no material difference between the third parties and the applicant, particularly in circumstances in which they allegedly colluded with each other and the respondents have conceded the compensatory protection in relation to the applicant. I am not persuaded by this submission. Any concession by the respondents (for whatever reason) cannot affect the proper construction of the statutory provision.
27 The respondents submit that the natural and ordinary meaning of s 124(2CA) of the Defence Act and s 32(2) of the Regulation is to provide a protection against the use of compelled evidence to establish a civil liability or criminal responsibility in the person whose privileges are being abrogated. In my opinion, that submission is correct and is supported by a number of authorities: Feldman at first instance at ,  and  per Campbell J; Feldman v Nationwide News Pty Ltd  NSWCA 260; (2020) 103 NSWLR 307 (Feldman on appeal) at –, – per Bell P (with whom Macfarlan and Payne JJA agreed); Herron v HarperCollins Publishers Australia Pty Ltd  FCA 805 (Herron) at – per Jagot J and Greyhound Racing Authority (NSW) v Bragg  NSWCA 388 at  per Santow JA (Ipp JA and Brownie AJA agreeing). It is true that these cases address different legislative provisions (i.e., Royal Commissions Act 1902 (Cth) s 6DD, Royal Commissions Act 1923 (NSW) s 17(2) and Independent Commission Against Corruption Act 1988 (NSW) s 37(3)). However, although not identical, the provisions are sufficiently similar to lead me to conclude that a similar construction should be adopted in the case of s 124(2CA) of the Defence Act and s 32(2) of the Regulation.
28 It is true that Hatfield supports a broader construction of an equivalent provision, but I respectfully agree with the criticisms of that case in Feldman at first instance at –; Feldman on appeal at – and Herron at .
29 The third parties sought to distinguish Feldman and Herron, but, in my opinion, their attempts fail. The fact that there might be a good deal more secrecy surrounding the proceedings of the IGADF than the proceedings which are the subject of other legislative provisions is not a reason to reject the same construction of a similar legislative provision. Nor is there a distinction because in this case the respondents are “attacking” the third parties and in the other cases the respondents are using the compelled evidence “defensively”. Ultimately, the respondents in this case are proposing to use the compelled evidence in support of their defences of justification and contextual truth.
30 In addition to according with the natural and ordinary meaning of the words used, the respondents’ construction is consistent with the object and purpose of the provisions, that is, to ensure that a person cannot be exposed to civil or criminal liability by reason of giving compelled evidence to the IGADF. This means, as the respondents pointed out, that the use of compelled evidence in a proceeding where the person is not exposed to either civil or criminal liability is not inconsistent with the object or purpose of either section.
31 Finally, the construction advanced by the respondents is supported by the fact that the prohibition is as to admission into evidence against the individual. It is not a prohibition against use as is, for example, s 128(7) of the Evidence Act 1995 (Cth). The point here is not that the relevant provisions cannot reach back to production on a subpoena (that point was not argued), but rather that the protection has a particular operation which does not include use in any way against the person’s interest.
32 The respondents’ construction of the relevant provisions is the correct one. The natural and ordinary meaning of the words and the object and purpose of the relevant provisions mean that the compensatory protection precludes the admission into evidence of compelled evidence only where it is sought to be relied on in proceedings against the individual to establish his or her civil liability. Furthermore, the construction is supported by the authorities to which I have referred.
33 The application is dismissed with costs.
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018