Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 24) [2021] FCA 1461

ORDERS

THE COURT ORDERS THAT:

1.    The Inspector-General of the Australian Defence Force be excused from producing the documents identified in the subpoena issued by the applicant dated 15 July 2021.

2.    Costs of the application are reserved.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    Mr Ben Roberts-Smith VC MG is a former Australian Defence Force (ADF) soldier who was deployed on multiple occasions to Afghanistan. In August 2018, Mr Roberts-Smith commenced proceedings in this Court seeking damages for alleged defamatory publications by Fairfax Media Publications Pty Limited, The Age Company Pty Limited, The Federal Capital Press of Australia Pty Limited and certain journalists. The publications are alleged to have carried a number of imputations concerning the conduct of Mr Roberts-Smith whilst serving in Afghanistan. The alleged imputations include that Mr Roberts-Smith broke the moral and legal rules of military engagement and that he is therefore a criminal. By their defence, the respondents claim to be able to justify the imputations, a matter on which they bear the onus of proof.

2    The substantive hearing commenced on 7 June 2021. The case is being conducted in accordance with the ruling in: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 13) [2021] FCA 549. The applicant closed his case in chief on 28 June 2021, and the respondents are due to present their case. The hearing was interrupted at the close of the applicant’s case as a result of restrictions imposed due to the Covid-19 pandemic.

3    On 15 July 2021, the applicant issued a subpoena to the Inspector-General of the Australian Defence Force (IGADF). The subpoena (IGADF Subpoena) seeks records of prior accounts concerning missions and allegations the subject of these proceedings provided by 12 current or former Special Operations Command (SOCOMD) members to the inquiry relating to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (the Inquiry). Each of the SOCOMD witnesses have been subpoenaed to give evidence for the respondents in these proceedings.

4    The IGADF Subpoena is in the following terms:

The documents and things you must produce are as follows:

1.     One copy of any transcript of interview between the Assistant IGADF and/or any individual directed to assist the Assistant IGADF in the Afghanistan Inquiry (the Inquiry) and the following individuals, in relation to events on 2 June 2006 at Khoran Gar, near Chora, Uruzgan, Afghanistan:

a.     Person 1;

b.     Person 2; and

c.     Person 69.

2.     One copy of any transcript of interview between the Assistant IGADF and/or any individual directed to assist the Assistant IGADF in the Inquiry and the following individuals, in relation to events on 12 April 2009 at a compound Whiskey 108 in the vicinity of Kakarak in the West Dorafshan district of Uruzgan, Afghanistan:

a.     Person 14;

b.     Person 18;

c.     Person 24;

d.    Person 40;

e.    Person 41;

f.     Person 42; and

g.    Person 43.

3.     One copy of any transcript of interview between the Assistant IGADF and/or any individual directed to assist the Assistant IGADF in the Inquiry and Person 14, in relation to events on 12 October 2012 at Chenartu, Uruzghan Province, Afghanistan.

4.     One copy of any transcript of interview between the Assistant IGADF and/or any individual directed to assist the Assistant IGADF in the Inquiry and Andrew Hastie MP, in relation to events on 20 October 2012 at Siachow, Afghanistan.

5.     One copy of any transcript of interview between the Assistant IGADF and/or any individual directed to assist the Assistant IGADF in the Inquiry and Person 16, in relation to events on 5 November 2012 at Fasil, Afghanistan.

5    The scope of the documents sought by that subpoena was further narrowed, with the applicant agreeing not to press so much of his subpoena as called for the production of:

1.     any ‘Excluded Category Information’ and/or ‘Further Excluded Category Information’, within the meaning given to those terms by Colvin J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 and Roberts-Smith v Fairfax Media Publications Pty Limited (N 8) [2020] FCA 1630); and

2.     the names of any Assistants IGADF apart from Major-General Brereton.

6    The IGADF claims public interest immunity over the documents sought, if they exist.

7    Orders pursuant to s 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) have previously been made, the most recent version being on 12 July 2021 (the NSI orders), which dictates the manner in which certain information must be handled in these proceedings. In addition, a confidential affidavit was relied on by the IGADF in support of his claims. As a consequence, to enable the parties to advance their positions it was necessary during the hearing of this application to hear some submissions in closed court. I have addressed aspects of that material in brief confidential reasons which are supplementary to this judgment.

8    There was no dispute between the parties as to the relevant legal principles governing claims of public interest immunity and the issue of subpoenas. I have summarised those principles in Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 (Roberts-Smith (No 14)) at [10]-[26] and Roberts-Smith v Fairfax Media Publications Pty Limited (No 15) [2021] FCA 582 (Roberts-Smith (No 15)) at [5]-[9], and it is unnecessary to repeat them here.

9    For the reasons given in this and the confidential judgment, the claim of public interest immunity made by the IGADF is upheld in relation to documents sought by the subpoena.

Material relied on

10    The IGADF read two affidavits of Mr James Gaynor sworn on 20 September 2021. The applicant read the affidavit of Mr Peter Bartlett sworn on 15 March 2021. Person 18 read his affidavit dated 25 October 2021.

James Morgan Gaynor

11    In support of his claims of public interest immunity, the IGADF relies on an open affidavit of Mr Gaynor sworn on 20 September 2021 (Open Gaynor Affidavit) and a confidential affidavit of Mr Gaynor sworn on 20 September 2021 (Confidential Gaynor Affidavit).

12    The current IGADF is James Morgan Gaynor. He gave examples of the IGADF’s functions, which includes conducting reviews and audits of ADF units, conducting inquiries or investigating matters concerning the military justice system, conducting investigations into allegations of professional misconduct, investigating or inquiring into the death or serious injury of ADF members in Australia or overseas, and advising on matters concerning the military justice system and making recommendations for improvement.

13    Mr Gaynor’s background and the circumstances in which the Inquiry was established are described in Roberts-Smith (No 14) at [28]-[33]. Suffice to say, the Inquiry was established to investigate the rumours and allegations of breaches of the Law of Armed Conflict by elements of the ADF’s Special Forces in Afghanistan.

14    Mr Gaynor deposed that the Inquiry was conducted in circumstances of strict confidentiality and outlined the extensive measures taken to preserve confidentiality in a non-exhaustive manner. This included: (1) a direction pursuant to the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation) that the Inquiry be conducted in private; (2) deliberately keeping the team size small and only disclosing information on a “need to know” basis among a small group of persons; (3) refurbishing the IGADF’s office to ensure Inquiry activities could be carried out with an appropriate degree of confidentiality given the subject matter, sensitivity and classified nature of the information being handled in the course of the Inquiry; (4) conducting interviews under circumstances of strict confidence and discretion (including the fact of each witness interview, the date, time and location of the interview); (5) the issuance of directions to witnesses pursuant to s 21 of the IGADF Regulation, restricting disclosure of evidence or documents given in the course of the Inquiry; (6) the issuance of similar non-disclosure directions, pursuant to s 21 of the IGADF Regulation to any persons who received a Potentially Affected Person Notice (PAP notice), being a notice that set out (for reasons of procedural fairness) the findings the Inquiry was proposing to make at that stage; (7) information was not shared with the ADF chain of command, the Secretary of the Department of Defence or the Defence Minister; and (8) a deliberate policy of not providing comments to the media.

15    Mr Gaynor explained the reasons for the confidentiality. Most relevantly for this application, he deposes that when requesting the instigation of the Inquiry, the Chief of Army (CA) expressed concerns to him about a “culture of silence” within SOCOMD which may have permitted or contributed to the occurrence of conduct of the sort being investigated by the Inquiry and “the deliberate undermining, isolation and removal from SOCOMD units of some individuals who tried to address this rumoured conduct and culture”. Similarly, Mr Gaynor said that in a direction given to him by the Chief of Defence Force (CDF) he also referred to the “culture of silence within SOCOMD” and that there was “the deliberate undermining, isolation and removal from SOCOMD units of individuals who tried to address this rumoured conduct and culture”.

16    Mr Gaynor described that understanding and breaking down the entrenched culture of silence within the ADF's Special Forces was a difficult and long-running challenge for the Inquiry. He explained that one of the principal reasons for confidentiality was to encourage all persons who may have had information relevant to the Inquiry to come forward and speak the truth to the Inquiry.

17    Mr Gaynor deposes that the culture of silence contributed not only to the very conduct which was the subject of the Inquiry, but also to the Inquiry's ability to gather information, follow lines of inquiry, and obtain the cooperation of SOCOMD members.

18    In the IGADF's 2018-2019 Annual Report, during the life of the Inquiry, the following was said about the challenges of gaining the trust and confidence of the Special Forces community. It stated:

It has ... taken some years for members of the Special Forces community-both those who continue to serve and former members-to develop sufficient confidence in the Inquiry and the genuineness of Defence senior leadership's desire to find out if the rumours are true, to be prepared to make disclosures to the Inquiry.

Gaining the confidence and trust of some of these witnesses, whose ADF careers have been spent in an environment in which secrecy is treated as fundamental, has required considerable effort and time. As this has been progressively achieved, more witnesses have been prepared to make disclosures, and new evidence has continued to emerge, some resulting in new lines of inquiry, and some reinforcing or corroborating existing lines of inquiry.

During the reporting period and even now, some witnesses are only just becoming willing to make disclosures.

19    Annexed to Mr Gaynor’s affidavit were portions of the publically released version of the Inquiry Report (Public Inquiry Report), which made like references to the culture of secrecy. In that Public Inquiry Report the Assistant IGADF described the ADF's Special Forces (or SOCOMD) as “a closed and secretive community in which there was a culture of silence”. The Assistant IGADF also described a “misguided loyalty that placed relationships and reputation above truth and morality”, and such misguided loyalty “has significantly contributed to the concealment of misconduct and the difficulty of uncovering it”. This entrenched “culture of silence” was a particular challenge faced by the Inquiry.

20    Mr Gaynor referred to various observations made in the Public Inquiry Report which was said to illustrate that. For example, at page 75:

It is evident that fear of the consequences of reporting misconduct to the chain of command has deterred some from doing so. In most cases this is fear for career prospects, although in some there has been fear of physical reprisals. In any event, experience shows that where a complaint or report is adverse to a member's chain of command, there are powerful practical constraints on making it.

21    At page 82:

…[S]pecialist SOTG staff had concerns or suspicions regarding operations which they were not confident to raise, or unsuccessfully attempted to raise, with superiors. Technical lines of reporting in which concerns could have been raised appear to have been underutilised. Elsewhere in this report are examples of SOTG members, both specialist and SF, being deterred by the risk of professional or personal ostracism, or threats, bullying, or other retribution, from raising their concerns. A deep-seated team or tribal culture led to the ostracism of members who might question the actions of other team members, which in hindsight facilitated actions against Army values and behaviours. Existing whistle-blower protections and redress of grievance processes were not adequate for members who were fearful of professional, social and physical retaliation to raise their concerns or 'blow the whistle' on unlawful actions.

22    At page 83:

For those who retained enough awareness to see that the situation was dangerously wrong, it was clear that doing anything about it was not going to be easy and there were potentially serious repercussions for those who had the temerity to speak up...If you broke that rule, then it was widely understood that there would be repercussions. Dr Crompvoets recorded that it was explicitly said to her that 'being a lone whistle blower in the SF [Special Forces] world on these atrocities would be met with intense resistance; shaming, ostracising, scapegoating, hostility and vindictiveness'. Some people clearly were fearful, for their own safety, their family's safety and for their career

23    At pages 83-84:

There were, then, many good reasons why people may have chosen not to speak out. Cultures of silence thrive when people are victimised for challenging the status quo or speaking out. People who felt they had no effective way of speaking up without making their own situation precarious at best may well have decided that discretion was the better part of valour in this situation: 'There is a culture of silence and I do think people get ostracised who potentially speak out against it. There's also the people who stay silent and they tend to continue on. But that's maybe the party line'. Others, including lawyers, who couldn't reconcile what they saw with what they thought should have happened just left the organisation.

24    In respect to the Public Inquiry Report, Mr Gaynor deposes that there are substantial redactions. He states that he, the Assistant IGADF, and the CDF consulted about, and gave very careful consideration to which parts of, and to what extent, the Inquiry Report should be publicly released. He states he was particularly concerned about ensuring the identities of persons who gave evidence to the Inquiry, and the content of their evidence, was not released to the public. This in part was to ensure that there could be no prejudice to any criminal processes which may occur in parallel with the Inquiry or which may occur in the future. However, Mr Gaynor was also concerned to avoid any risk of harm to persons who assisted the Inquiry and to maintain the strict confidentiality with which the Inquiry was conducted so that the integrity and information gathering processes for future similar inquiries would not be compromised or undermined.

25    Mr Gaynor addressed the specific material sought by the IGADF Subpoena, which is parts of transcripts of interviews conducted by the Inquiry (Interview Transcripts) with 12 current or former SOCOMD members relating to specific events occurring in Afghanistan. All but one of those witnesses have protected identities and are identified by pseudonym (being the persons assigned a pseudonym in these proceedings). They are “Sensitive Witnesses” within the meaning of that term in the NSI orders made in the proceedings on 15 July 2020 (as most recently amended on 12 July 2021).

26    Mr Gaynor deposes that in his view it is contrary to the public interest to produce the Interview Transcripts. In summary, he claims public interest immunity because production of the Interview Transcripts would prejudice the integrity of the Office of the IGADF by: damaging trust and confidence in the Office of the IGADF and the Inquiry, in circumstances where the Inquiry took significant steps to break down an entrenched “culture of silence” within the ADF's Special Forces; potentially exposing whistle-blowers and other informants to a risk of harm; prejudicing the IGADF's ability to conduct future similar inquiries; undermining the confidentiality of the Inquiry and the directions made pursuant to s 21 of the IGADF Regulation to ensure the evidence given to the Inquiry is not disclosed; and undermining the scheme in the IGADF Regulation which entrusts decision-making about confidentiality and publication to designated, highly qualified and experienced individuals, and thereby impairing the regime for the conduct of inquiries. The bases of the claim were also addressed in the Confidential Gaynor Affidavit. That affidavit provides further detail about the information over which public interest immunity is claimed and describes the basis of the claim in more specific terms.

27    Mr Gaynor states that disclosure of any Interview Transcripts would have the effect of further undermining the s 21 direction made by the Assistant IGADF in relation to the Inquiry Report as it would reveal the names and identifying information of those who gave evidence or information to the Inquiry. It would also have the effect of undermining the CDF's carefully considered decision about whether, and to what extent, the Inquiry Report could be publicly released. He expressed the opinion that disclosure of such information would be contrary to the public interest for the reasons explained above, and because it would tend to demonstrate that non-disclosure directions made by the IGADF (or an Assistant IGADF) may be easily cast aside, at the instigation of a private party in the context of civil litigation. This would erode respect for directions made by the IGADF and for the Office of the IGADF more generally. It would also erode respect for the CDF as the individual with primary responsibility for the command of the ADF under s 10 of the Defence Act 1903 (Cth).

28    Mr Gaynor states that the NSI orders would be insufficient to address his concerns.

Applicant’s material

29    The applicant tendered a bundle of documents. In addition the applicant tendered the affidavit of Mr Bartlett dated 15 March 2021, the solicitor for respondents, which was filed in support of their application for leave to issue subpoenas to certain witnesses and for leave to amend the respondents’ defence.

30    Peter Bartlett is a partner at MinterEllison and the lawyer for the respondents. Mr Bartlett sets out a chain of events relating to the preparation of Person 18’s outline of evidence and amended outline of evidence. The affidavit also includes a summary as to the respondents’ anticipated evidence of Persons 31 and 56, the respondents’ failure to provide an outline of evidence, and the respondents’ contact with the relevant person. Mr Bartlett said that the respondents do not have the contact details of Persons 24, 40, 41, 42, 43, 51, 69 and 70 and therefore have not been able to contact those persons. Annexed to Mr Bartlett’s affidavit is correspondence with Person 18’s legal representative and Person 18’s amended outline of evidence.

Person 18

31    Person 18 filed a brief affidavit dated 25 October 2021. He deposes that at the time of his contact with the Assistant IGADF he understood that the contact and communication was private and confidential and would not be made public. Person 18 said he did not agree to, and opposes anything said to the IGADF, including the transcript of any interview, being released to the parties in the proceedings.

32    The applicant objected to aspects of Person 18’s affidavit, however the affidavit was admitted subject to the weight to be attached to the impugned paragraphs.

Submissions

33    The following summary of the submissions relates to those made in open court.

IGADF

34    The IGADF submitted that Mr Gaynor is well placed to give evidence of the harm to the public interest that would arise from the disclosure of the Interview Transcripts, as he was the IGADF or acting IGADF over the course of the Inquiry, and continues to hold that statutory office today. This includes evidence about the particular public interests which support the confidentiality of evidence given by SOCOMD members to the Inquiry being maintained, and the nature of the prejudice which may otherwise be caused.

35    First, the IGADF submitted that the Inquiry was conducted under conditions of strict confidentiality. In support, the IGADF relied on the affidavit of Mr Gaynor who deposes to the reasons for conducting the Inquiry in this manner in great detail. He identified that concerns had been raised at the highest levels about the “culture of silence” and secrecy within SOCOMD and that this posed particular challenges for the Inquiry. The IGADF referred to the nature of the allegations: possible crimes (illegal killings, inhumane and unlawful treatment of detainees, or mistreatment of corpses); the cultural normalisation of deviance from professional standards within SOCOMD, including intentional inaccuracy in operational reporting related to possible crimes; the deliberate undermining, isolation, and removal of individuals from SOCOMD units who tried to address this rumoured conduct and culture; and a systemic failure to report or investigate the stories as required by ADF policies, including by commanders and legal officers at multiple levels within SOCOMD.

36    The IGADF submitted that preserving the confidentiality of the Inquiry was regarded as essential to encouraging those who had information relevant to the Inquiry to come forward and give a truthful and comprehensive account of their experiences. The IGADF detailed the processes and procedures in place to achieve this confidentiality.

37    Second, the IGADF submitted that release of the Interview Transcripts would undermine the statutory scheme. The IGADF detailed the directions issued to witnesses pursuant to s 21 of the IGADF Regulation restricting the disclosure of information. This included there be no public disclosure of the information contained in oral evidence given to the Inquiry, which also covers the transcripts of evidence. Those directions continue to apply after the conclusion of the Inquiry and the publication of the report about the Inquiry. Orders pursuant to s 28 of the IGADF Regulation in relation to disclosure of the report of the Inquiry are also in place. The IGADF submitted that disclosure of the transcripts would have the effect of disclosing the substance of the Inquiry Report in a way that the CDF determined should not be disclosed.

38    The IGADF referred to the Open Gaynor Affidavit where Mr Gaynor expressed the opinion that disclosure as sought by the IGADF Subpoena would: undermine the s 21 directions made in relation to the Report about the Inquiry; undermine the CDF’s decision as to the limited disclosure of the Inquiry Report (and the related or equivalent decision by the Assistant IGADF not to exercise his independent power to publicly release the Inquiry Report); and erode support for the office of the IGADF and the CDF. It was also submitted that it would, more broadly, “erode the degree of assurance that persons cooperating with IGADF inquiries derive from the existence of the direction-giving power”, as it would tend to emphasise the capacity of private individuals, pursuing their own interests in civil litigation to use “compulsory processes to circumvent the effect of such directions” referring to Roberts-Smith (No 14) at [73].

39    The IGADF also submitted the Interview Transcripts of the 12 current or former SOCOMD members are in a relevantly different category from the documents which the IGADF has been required to produce, over objection on public interest immunity grounds, in these proceedings to date. In particular, the IGADF submitted that unlike the Afghan witnesses, none of the SOCOMD witnesses are giving evidence voluntarily, rather each has been subpoenaed by the respondents. During oral submissions, the IGADF submitted that the fact these witnesses were subpoenaed is a point of distinction between them and the Afghan witnesses.

40    Finally, the IGADF addressed that the balance weighs in favour of non-disclosure. In this regard the IGADF, first highlighted that the IGADF subpoena is directed to evidence given by up to twelve current or former SOCOMD members and that ADF personnel are the very persons whose confidence and trust the Office of the IGADF was and is most directly concerned with fostering. It was submitted that the position of SOCOMD members who participate in the IGADF’s inquiries may be assimilated to that of whistle-blowers or informers. The authorities recognise that, in order to perform their statutory functions and discharge the responsibilities conferred on them by Parliament, regulators and other administrative bodies – like policing agencies or other law enforcement bodies – depend on members of the regulated community (or the public more broadly) to report allegations, complaints or other concerns: Roberts-Smith (No 14) at [23], see also [20]-[22]. Second, the SOCOMD members are strangers to these proceedings, which are civil proceedings and, as noted above, unlike the Afghan witnesses who gave evidence voluntarily, these witnesses are subpoenaed. Third, neither party currently has possession of the documents sought by the applicant’s subpoena. As such, production of the subpoenaed materials would not correct an informational imbalance between the parties, unlike the position in Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 (Roberts-Smith (No 6)) at [93]. Fourth, the scope of the subpoena is unprecedented in these proceedings: cf: Roberts-Smith (No 14) at [91]. Fifth, the fact that the parties have previously agreed orders pursuant to s 38B of the NSI Act does not answer the concerns identified in Mr Gaynor’s evidence, and especially in the Confidential Gaynor Affidavit (as alluded to in the Open Gaynor Affidavit).

41    In response to the applicant’s submissions, the IGADF submitted, inter alia, on the topic of confidentiality, that there is a great deal of difference being told that “that there may be circumstances where there is a legal entitlement for purposes of procedural fairness that information might be disclosed, and that information may be produced on subpoena in circumstances such as the present”.

Applicant

42    The applicant submitted that there is a legitimate forensic purpose in the material sought. As noted above, each of the 12 SOCOMD witnesses have been issued with a subpoena by the respondents to give evidence in these proceedings. Each of the witnesses is the subject of a representation by the respondents that they will be called to give evidence in these proceedings.

43    Outlines of anticipated evidence have been served by the respondents in respect of Persons 1, 2, 14, 16, 18 and 67. The applicant submitted that it is not clear whether these witnesses participated in the preparation of their outlines.

44    The applicant detailed (in open and closed court) matters said to demonstrate the relevance of this material. He submitted that any account given by the 12 SOCOMD witnesses to the Inquiry of the events that occurred during these missions is reasonably likely to add to the relevant evidence in the case, especially where outlines of anticipated evidence have not been served by the respondents in respect of Person 24, 40, 41, 42 and 43. Records of the accounts given by the SOCOMD witnesses in the Inquiry may also reveal matters that bear upon the credibility of the accounts to be given by these witnesses, particularly in circumstances where the events occurred many years ago. The applicant submitted credit will be a central issue in the proceedings.

45    The applicant then addressed the balance of the public interest. The applicant submitted that the public interest weighs in favour of the disclosure of the documents sought by the IGADF Subpoena for the following six reasons.

46    First, the documents sought fall into a category that is materially similar with the transcripts of evidence of certain Afghan witnesses which this Court considered in Roberts-Smith (No 14), and which determined should be produced in these proceedings.

47    Second, it cannot be assumed that all of the 12 SOCOMD witnesses are not voluntarily participating in the proceedings. Although each of the SOCOMD witnesses has been subpoenaed by the respondents, it appears that Persons 14 and 18 are voluntarily assisting the respondents. Insofar as the IGADF purports to distinguish the participation of the SOCOMD witnesses from the Afghan witnesses, the applicant submitted that there is no evidence for that blanket submission. The applicant submitted that, in any event, the attitude of a particular witness to the giving of evidence is not relevant. Witnesses do not invite scrutiny of their earlier testimonies by attending to give evidence at a hearing. Such scrutiny is invited by the act of a party calling a particular witness to advance that party’s case. Where witnesses have given previous accounts of events that are in issue in the proceedings, preventing an opposing party from accessing those previous accounts denies that party an opportunity to effectively cross-examine those witnesses. The applicant submitted that the absence of the material may result in the Court being misled as to material facts, which would hinder the ability to arrive at the truth. The applicant submitted that the potential frustration of the administration of justice caused by an inability to effectively cross-examine these witnesses outweighs the potential harm that may be caused by disclosure of the Interview Transcripts (assuming they exist).

48    Third, the applicant submitted that the IGADF’s submissions as to the potential prejudice to the statutory regime if production of the materials sought is made, are misconceived. Any production could only be performed in accordance with the NSI orders which govern these defamation proceedings. Production of the materials sought in this limited way to a limited number of persons for a limited purpose would not undermine the confidential nature of the Inquiry or its underlying statutory regime. In any case, given the production of the applicant’s PAP notice and the transcripts of certain Afghan witnesses that has already occurred, the production of the transcripts sought by the IGADF Subpoena would not further undermine the statutory scheme. In relation to the IGADF’s submission that it would undermine the statutory scheme in relation to any future participation, the submission ignores that the IGADF has the power to issue notices to compel persons to appear before the IGADF and failure to comply with the direction to answer a question is an offence under the IGADF regulations.

49    Fourth, there is no evidence that the SOCOMD witnesses who participated in the Inquiry are to be equated with “whistle-blowers” and “informers”. This submission ignores that the IGADF’s information gathering powers, which support its statutory functions, are broad: see s 22 of the IGADF Regulation. In view of the extensive information gathering powers that are available to the IGADF, it cannot be assumed that any of the SOCOMD witnesses were whistle-blowers or willingly provided a version of events to the Inquiry. There is no suggestion that each of the 12 SOCOMD witnesses voluntarily attended to give evidence to the Inquiry.

50    Fifth, the applicant relied on the observations of Gordon J in Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 (Cadbury Schweppes v Amcor) at [29], [30], [35], as being apposite to public interest claims based on the importance of preserving the confidentiality of communications with whistle-blowers and informers. There is no evidence that witnesses who gave evidence to the Inquiry had a reasonable expectation that their evidence would remain confidential. The IGADF has not produced any evidence that any of the 12 SOCOMD witnesses sought an assurance from the Inquiry that the information they provided to it would remain confidential (assuming they were interviewed by the Inquiry). There is no specific and direct evidence that either those witnesses, or others similarly situated have been or would be dissuaded from coming forward without an assurance of confidentiality. Referring to the Public Inquiry Report, it was submitted that the Inquiry witnesses “were informed that they could not be given an absolute guarantee of the confidentiality of the interview”, was relevant.

51    Sixth, the applicant submitted the production of the materials sought will not cause any erosion of confidence in the IGADF. Should the IGADF ultimately be required to produce any material pursuant to the IGADF Subpoena, it will not be as a result of any want of opposition by the IGADF to that outcome. Instead, it will be because the Court has determined, on a principled basis, that the public interest for disclosure outweighs the public interest in preserving the confidentiality of the material. The qualified assurance of confidentiality provided to witnesses by the Inquiry recognises this possibility. The position which the IGADF has adopted in relation to the IGADF Subpoena would still instil confidence among ADF members that the IGADF will endeavour to protect the confidentiality of its communications with Inquiry witnesses where possible.

Respondents

52    The respondents acknowledged that there is potentially a legitimate forensic purpose in relation to the material sought. In relation to the balance of the public interest, the respondents deferred to the submissions of the IGADF. However, the respondents briefly addressed two matters.

53    First, the respondents provided some relevant chronology as to when certain events happened in relation to the witnesses. Second, the respondents addressed the applicant’s submission in respect to fairness between the parties. Before the decision to provide the redacted PAP notice to the respondents in Roberts-Smith (No 6) there was an information asymmetry between the parties, with the applicant and some of his lawyers having the PAP notice although the respondents did not. As a consequence, the respondents did not have any information from the IGADF known to the applicant. Because of that information asymmetry, Colvin J ordered the information be disclosed. Following Colvin J’s decision, that information asymmetry had been remedied to an extent, but not completely. The information asymmetry remains as both parties have the PAP notice, to some extent, but the applicant has the PAP notice to a greater extent.

54    It was submitted that the effect of Roberts-Smith (No 6), was that there was no further intrusion on the confidentiality of the IGADF process, because the information disclosed to the respondents was limited to information that had already been disclosed to the applicant. In relation to the 12 SOCOMD witnesses, there is no risk of further disclosure of confidential IGADF material to the respondents. Those witnesses are prohibited from informing the respondents of what happened within the IGADF process.

55    The respondents submitted this subpoena would create a new and different information asymmetry between the parties heavily skewed towards the applicant’s interests, and would be a further intrusion into the confidentiality of the IGADF process. That is because the respondents’ witnesses would have their Interview Transcripts provided to the applicant for his use, but there would not be the potential for any information about Persons 5, 11, and 35, who are key witnesses for the applicant, to be provided to the respondents. A forensic benefit would be conferred on one of the parties to this litigation.

Persons 2, 14, 18, 40 and 43

56    Submissions were filed on behalf of Persons 2, 14, 18, 40 and 43 in support of the IGADF’s claim for public interest immunity.

57    Counsel for these witnesses said the witnesses have communicated with assistants to the IGADF in relation to the Inquiry. They believed and understood that their communication with the Inquiry was private and confidential and would not be made public. They have not consented to the release of their communication with the IGADF to the parties to these proceedings nor to the public, which includes the transcript of any interviews (if they exist). It was submitted that release of any Interview Transcripts to any or all of the parties (or the public) in this high profile public matter will damage the trust and confidence in the IGADF’s inquiry processes and that members of the ADF are unlikely to voluntarily cooperate with the IGADF in future inquiries.

58    As noted above, in his affidavit Person 18 said, in effect, he believed that the Inquiry hearings were confidential.

Person 1

59    Person 1 filed brief submissions, adopting the IGADF’s submission in so far as it applies to him. He submitted that he cooperated with the Inquiry on the basis that he believed any information shared would remain confidential.

Consideration

60    The IGADF accepted 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 [1984] HCA 85; (1984) 154 CLR 404 (Alister) is to be performed.

61    The documents sought are documents which, if they exist, arose as a result of the Inquiry. The circumstances in which the Inquiry was initiated 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 in 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 the Assistant IGADF to conduct his investigation is self-evident.

62    I accept the evidence given by Mr Gaynor in his open and confidential affidavits. The deponent plainly has extensive experience both in the Defence Force and in his role as the IGADF. It is also evident that care has been taken in the preparation of his affidavits. The issues addressed concern matters not wholly within the Court’s experience. The experience of Mr Gaynor, particularly over the course of the 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. I have taken into account the evidence of Mr Gaynor in both his affidavits, with the confidential affidavit elaborating on the information provided in his open affidavit. Although it is inappropriate to recite the evidence in the confidential affidavit here, it suffices to say that it adds weight to his claim for public interest immunity.

63    Significant weight can be attached to the opinions he expresses about the impact of disclosure of the information sought.

64    Against that background, a number of observations about the submissions and relevant considerations can be made.

65    First, in Roberts-Smith (No 14) I made observations at [69]-[70] as to the nature of the substantive hearing which are relevant here, and bear repeating:

[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.

66    Second, the 12 current or former SOCOMD members in relation to whom the material is sought by the IGADF Subpoena are each subpoenaed by the respondents to give evidence, and are strangers to these proceedings: Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 (Roberts-Smith (No 12)). Any involvement they may have had with the Inquiry would have been under the conditions imposed by the IGADF, including the steps undertaken and directions made to ensure confidentiality of the process, as described in the affidavits of Mr Gaynor: see for example [14] above. As to the latter, the directions included, inter alia, that the Inquiry be conducted in private and pursuant to s 21 of the IGADF Regulation, restricting disclosure of evidence or documents given in the course of the Inquiry (and any PAP notice received).

67    Third, the importance of the IGADF’s ability to make various orders which ensure the non-publication or non-promulgation of what occurs in an inquiry is self-evident: see Roberts-Smith (No 14) at [73]. The weight to be attached to that fact in conducting the balancing exercise must necessarily depend on the circumstances of the case. As explained in Roberts-Smith (No 14), the application must be considered in a context where Colvin J in Roberts-Smith (No 6) and Roberts-Smith v Fairfax Media Publications Pty Limited (No 8) [2020] FCA 1630 (Roberts-Smith (No 8)) made orders which refused parts of a claim for public interest immunity by the IGADF over some material from the Inquiry sought by the respondents. As a result, the applicant’s PAP notice (in redacted form) has been released to the respondents subject to the NSI orders. It follows that any submission as to the public interest in this case must be considered in that context. However, it is not a situation, as the applicant contended, that the IGADF’s submission as to the legislative scheme in relation to confidentiality and the importance thereof, was rejected by Colvin J, and therefore the issue “is done and dusted”. Rather, the legislative scheme is plainly relevant, but cannot be considered in a vacuum, or at a level of generality which does not recognise the circumstances. Attention therefore must also be directed to issues or additional issues that may arise, in that context, given the material sought. I will return to this topic below.

68    Suffice to say at this stage, the IGADF’s submission that there is a difference between what may have been disclosed in a PAP notice as a result of procedural fairness obligations, and disclosure of a transcript of a witness’ interview(s) with the IGADF, can be accepted.

69    In addition, it is appropriate in that context to observe that the applicant’s significant reliance on the fact that the respondents are only aware of some of these witnesses through the applicant’s PAP notice which was compelled to be produced, for the reasons given in Roberts-Smith (No 14) at [88]-[89], does not advance his case. The use to which the respondents have made of any information they obtained from the PAP notice, does not provide the applicant with an entitlement, per se, to the material sought.

70    Fourth, it may be accepted that there was no absolute guarantee or assurance of confidentiality of the evidence given. The Public Inquiry Report records that:

….at the beginning of every interview, witnesses were informed that they could not be given an absolute guarantee of the confidentiality of the interview, as there were circumstances in which other persons who may be affected by their evidence may be legally entitled to know what has been said, but that the Inquiry would endeavour to protect their privacy and confidentiality as far as reasonably and legally practicable.

71    In Roberts-Smith (No 6) at [97] Colvin J described that “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”. Colvin J, immediately preceding that passage had referred to there being a prospect the Inquiry Report would be made public (a decision not then having yet been made) and that parties providing information may be called upon to give evidence in any future criminal proceedings. The basis on which the comment was made as to the Inquiry Report is unclear. The evidence from Mr Gaynor on this application is that the Public Inquiry Report is heavily redacted, and he was particularly concerned to ensure the identities of persons who gave evidence to the Inquiry, and the content of their evidence, was not released to the public. That approach is consistent with the evidence of the procedures adopted to conduct the Inquiry.

72    Nonetheless, it may readily be accepted that the types of circumstances in which evidence given by a witness to the Inquiry would be disclosed, is very limited. Indeed, as is apparent from what was said at the beginning of every interview, the only basis identified in the excerpt identified and relied upon by the applicant at [70] above, was the possibility of some disclosure to fulfil procedural fairness obligations. What the witnesses were told would give rise to a reasonable expectation that what they said to the Inquiry would remain confidential except in very limited circumstances; and in that context it would remain confidential as far as reasonably and legally practicable. Although it can be inferred, given the topics the subject of the Inquiry, that the prospect of criminal proceedings (conducted in the public interest) may have been envisaged, the prospect of civil litigation such as this would not be such a circumstance. Particularly, private civil litigation instituted by the person who it is assumed, given that the respondents are calling these witnesses in respect to a defence of truth, their evidence is said to implicate. The material sought by this subpoena and the context in which it is sought, is far removed and clearly distinct from the potential need to provide information because of procedural fairness obligations. The material is sought by the applicant in that context, for use by him in his civil proceedings. This is also in the context of the culture deposed to by Mr Gaynor, and the steps undertaken to conduct the Inquiry.

73    The applicant’s reliance on the observations of Gordon J in Cadbury Schweppes v Amcor at [29], must be considered in the above context. Indeed, in Cadbury Schweppes v Amcor the context is such that at [30], Gordon J observed:

A cartel claim, by definition, involves collusion between two or more actors.  In the same way that it is both inevitable and self-evident that statements of a cooperating criminal conspirator will be used against the non-cooperating conspirators, it must be taken for granted that a cartel participant contemplating a confession to the authorities knows, or should know, that his statements will be used by the authorities to prosecute the other party or parties. 

74    The proceedings in Cadbury Schweppes v Amcor were ancillary to proceedings brought by the regulator, the Australian Competition and Consumer Commission. As noted elsewhere, each case must turn on its own facts. The position of witnesses in the Inquiry is removed from the particular circumstances considered by her Honour. This includes the statutory context in which the Inquiry was conducted. Relevant also is the evidence as to the difficulties that the IGADF had in breaking down the culture of secrecy, and as to the steps that the IGADF assessed were necessary in that context to put in place a scheme of confidentiality.

75    Fifth, as with the material sought in Roberts-Smith (No 14), the material sought by this subpoena is directed to prior statements of the SOCOMD witnesses to be called by the respondents, because of their reliance on the defence of truth. The potential relevance of this material is directed to the credit of the witnesses. The breadth of the assertions made by the applicant as to the consequences if the public interest claim is granted, must be considered in perspective. It is important to recall, as I recognised in Roberts-Smith (No 14), at [74], and see [45], as a general proposition cases proceed, particularly in the civil context, where the opposing party does not necessarily have prior statements of the witnesses, and that does not result in a trial being necessarily unfair. The applicant’s submission as to the significance of the material sought on his ability to cross-examine these witnesses must be considered in that context.

76    Moreover, as noted above, this trial commenced on 7 June 2021. The applicant’s case closed on 28 June 2021. The hearing was adjourned because of the Covid-19 pandemic (save for a hearing in the week of 26 July 2021 to take the evidence of the Afghan witnesses). The IGADF Subpoena was issued on 15 July 2021, sometime after the hearing was adjourned. In the normal course of events the respondents’ case would have commenced at the end of the applicant’s case and would, it can be inferred, have involved the SOCOMD witnesses. These witnesses would have commenced giving evidence thereafter, and obviously at a point of time when this subpoena had not been issued. A number of these witnesses have been on the respondents’ witness list for a considerable time with outlines of their evidence served by the respondents in May 2019. Six of these witnesses were identified through the PAP notice as a result of the ruling of Colvin J, and leave to amend the pleadings and to issue subpoenas was granted on 23 April 2021. The applicant had issued other subpoenas to the IGADF at an earlier point in time in respect to different material, including relating to the Afghan witnesses, as reflected in Roberts-Smith (No 14). Although the potential relevance of documents of the nature sought may be accepted, the applicant’s submission that the material is critical to him having a fair trial must also be considered in this context.

77    Also as to the applicant’s submission of the significance of the material sought on his ability to cross-examine, I note that this type of material from the Inquiry could not be provided in respect to all witnesses who appeared before the Inquiry. For example, any evidence given by witnesses to the Inquiry which falls within the excluded category or further excluded category of documents in Colvin J’s judgment has not been produced. Those are described in Roberts-Smith (No 8) at [2], [16] as:

[2]     … In doing so, the position of the respondents was that they did not seek production of any information given by Mr Roberts Smith to the Inquiry or any material derived by the Inquiry (directly or indirectly) as a result of disclosure by Mr Roberts Smith (Excluded Category).

[16]    … 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)

78    Those categories can include any prior account or interview of a witness. For example, material relating to the applicant and other potential witnesses, including key witnesses to be called by him, is excluded. This is the basis on which the respondents describe that the production of the material sought will result in an information asymmetry between the parties in respect to the Inquiry, with the applicant being put in an advantageous position. That would appear to be the inevitable result if the material sought is obtained. Leaving aside any suggestion of unfairness between the parties, that such material could not be produced in respect to all SOCOMD witnesses in the hearing, puts into perspective the bold submission by the applicant that the absence of this material would result in the Court being misled.

79    In this context, finally, I also note that, as the IGADF submitted, in so far as the applicant contends his ability to cross-examine these witnesses is dependent on the material sought, there is a “wealth of documentary material” before the trial Court that relates to events the subject of the hearing. In this regard, Roberts-Smith (No 12) at [39] describes some of the large volume of material received by the applicant (at that time) as a result of subpoenas issued to the Department of Defence, in relation to mission dates and events in the respondents’ particulars of truth, including mission plans, after action reports, aerial imagery, photographs, audio transcripts and other military documents. This simply illustrates the types of material that can exist and that cross-examination would not be conducted in a vacuum.

80    Sixth, contrary to the applicant’s submission, the material sought in relation to the SOCOMD witnesses cannot simply be characterised as analogous to that of the Afghan witnesses, considered in Roberts-Smith (No 14). Although there may be some aspects which could be said to be similar, there are significant differences. The SOCOMD witnesses are current and former ADF personnel, the very persons whose confidence and trust the Office of the IGADF was and is most directly concerned with fostering. The ADF is the regulated community for whom the IGADF is an “integrity officer” and on whom the IGADF relies in the discharge of his statutory mandate. Their participation in the IGADF’s processes is essential to facilitating the performance by the IGADF of the statutory functions assigned. Any evidence given by the SOCOMD witnesses to the Inquiry was in the statutory context, the procedures in place to ensure confidentiality and directions given, as described above. The differences in the nature of the witnesses to which material is sought informs the basis of the claim for immunity, and the weight to be attached to various aspects thereof.

81    The applicant’s submission that the release of the material sought will not further undermine the IGADF because the interviews were provided in respect to the Afghan witnesses, fails to take account of the significant differences between the nature of the witnesses, the statutory context, the circumstances of the Inquiry, and the context of the culture of silence deposed to by Mr Gaynor.

82    Seventh, the IGADF also submitted that unlike the Afghan witnesses, none of the SOCOMD witnesses are giving evidence voluntarily as each has been subpoenaed by the respondents to attend: cf Roberts-Smith (No 14) at [71]. This was contrasted to the Afghan witnesses who gave evidence voluntarily, with no subpoenas being issued. It was submitted that in those circumstances, this is not a case where persons have invited scrutiny of their earlier testimonies by voluntarily participating in civil litigation between private parties.

83    The position of the witnesses as to giving evidence is not entirely clear. Certainly the witnesses have been subpoenaed, but it is not uncommon for that to occur, and as said by the applicant, is reflective of good practice. A subpoena is issued to ensure a witness attends court, and can be issued even if a witness is cooperating. As the applicant correctly submitted, the position that because a witness has been issued a subpoena they are not giving evidence voluntarily, cannot necessarily be assumed.

84    That said, some insight as to the circumstances in which at least some of these witnesses are giving evidence can be gained from the reasons in Roberts-Smith (No 12), where Besanko J considered the application for leave to issue the subpoenas in respect to Persons 24, 40, 41, 42 and 43. It is plain that those persons only became known to the respondents as a result of the receipt of the redacted PAP notice as a consequence of the orders by Colvin J. The respondents wished to call these persons as witnesses, and therefore were seeking leave to issue the subpoenas to secure their attendance. The application was opposed by the applicant in respect to these witnesses. At the time of the application the respondents, including their legal representatives did not have contact details for these persons and had not been able to contact them: Roberts-Smith (No 12) at [30]. It can be inferred in all the circumstances, that the issue of the subpoenas were necessary to secure their attendance. The involvement of these witnesses in these proceedings has occurred as a result of a party obtaining a court order compelling their attendance.

85    In this context, I note also the applicant’s submission that the Court does not know what, if any involvement the witnesses have had in the outlines of evidence that have been filed (which only relates to Persons 1, 2, 14, 16, 18 and 67). This submission was made in a context where in respect to an earlier application, as the applicant identified, one witness (Person 4) made a representation that he had not spoken to the respondents before they served an outline of evidence from him. In Roberts-Smith (No 12) there is some discussion as to the outline of evidence of Person 18, as the respondents made an application to file an amended outline. It is apparent that the original outline of evidence filed in relation to Person 18 was “on the basis of information the respondents and their legal representatives had from confidential sources and witnesses”: Roberts-Smith (No 12) at [42]. A reading of the reasons makes it plain it was filed without involvement of Person 18.

86    Given the above, it may be readily inferred that at least some of the witnesses have not been involved in the preparation of the outlines of evidence filed in their names by the respondents, and that, at least in respect to some of the witnesses, the respondents have sought and obtained leave to issue subpoenas to secure their attendance to give evidence in the substantive hearing, having had no contact with them. The respondents were unaware of Persons 24, 40, 41, 42 and 43 until they had been provided with the applicant’s PAP notice, and were not involved in these proceedings until subpoenaed by the respondents. They are involved in these proceedings by actions of the parties.

87    The applicant submitted that in any event, the attitude of a particular witness to the giving of evidence at the hearing is beside the point, as scrutiny is invited by the act of a party (and not the witness) calling a particular witness to advance that party’s case. Although the scrutiny does result as a consequence of the party calling the witness, the context in which the witness is involved in the proceedings may impact on the public interest on the production of the documents sought. I note that in respect to the Afghan witnesses, the applicant advanced that a relevant consideration was that the witnesses were giving evidence voluntarily, without a subpoena being required: Roberts-Smith (No 14) at [50].

88    Eighth, the IGADF submitted the SOCOMD members who participated in the IGADF’s inquiries may be assimilated to that of “whistle-blowers or informers”. In Roberts-Smith (No 14) at [23], I observed that the authorities recognise that, in order to perform their statutory functions and discharge the responsibilities conferred on them by Parliament, regulators and other administrative bodies depend on members of the regulated community or the public more broadly to report allegations, complaints or other concerns: see, for example, Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227 at [48]-[50]; Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. [2011] FCA 938; (2011) 283 ALR 137 at [194]-[195]; R v Meissner (1994) 76 A Crim R 81 at 89; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 at 312.

89    Contrary to the applicant’s submission, it is not as simple as, or dependent on whether a witness volunteered to cooperate, initiated a complaint or was summonsed to give evidence pursuant to a compulsory power. That said, placing a label on these witnesses does not assist.

90    The submission that these witnesses can be viewed as “informers” is also in the context of Mr Gaynor’s evidence as to the culture of silence, and the impact that had on the conduct of this Inquiry. This material sought is evidence of current or former SOCOMD members given to an inquiry about the conduct of other such members where, if that evidence was given, exposed conduct that could amount to wrongdoing. Given the topic of the Inquiry and the circumstances in which it was conducted, including the culture of silence (and the perceived consequences for persons providing information, as explained in Mr Gaynor’s evidence) the SOCOMD members who cooperated with the Inquiry could properly be regarded as in a position akin to an informer. So much is apparent if one considers the rationale behind the concept of protecting informers, which includes that sources of information would dry up, authorities would be hindered in fulfilling their functions and those informing may suffer adverse ramifications as a consequence of doing so. That the applicant is now aware of the identities of these witnesses or even, if it be the case, that the applicant has some information as to what they told the Inquiry, is not the end of the matter. That said, some of the considerations in relation to informers (for example, the consequences of revealing their identity) may have less application. Although in this instance, unlike the Afghan witnesses, the identities of the SOCOMD witnesses are protected, with the use of pseudonyms being adopted accordingly.

91    The applicant relied on observations in Haydon v Magistrates Court (SA) [2001] SASC 65; (2001) 87 SASR 448 (Haydon), referring in particular to the observations of Doyle CJ at [30] as follows:

I agree with the observations of Brooking J that the general expressions used in some of the cases should not be taken as intended to be precise assessments of the quality or significance that material must have before disclosure will be required. I am content, with respect, to adopt the approach that Brooking J adopted (the other members of the Court agreed) in Jarvie, after his review of the authorities. He said (at 90):

“But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution.”

Even this statement provides no more than a general guide. It is perhaps helpful to add that the fact disclosure of an informer’s identity, or of information provided, might be of some assistance will not be sufficient. To require disclosure on this basis would be to undervalue the importance of the public interest in non-disclosure. This is made clear by the reasons of some of the members of the High Court in Alister. In Alister, the fact that the relevant material might provide material which might bear on the credit of a key witness for the prosecution was not enough for the Court to order disclosure. It was not known whether the material would have the suggested effect, and even if it did there was other material confirming the relevant witness’s evidence, and that other material would remain even if the credit of the relevant witness were demolished: see (1984) 154 CLR at 438 Wilson and Dawson JJ, at 454-455 Brennan J. However, as to the decision in Alister, it is important to bear in mind that that case was primarily concerned with the question of whether the Court should inspect the relevant documents, and that the observations referred to were made without knowledge of the contents of the documents. It is also relevant to bear in mind that each case will be different, and one must be careful about converting observations made in a particular context into hard and fast rules. Thus, I respectfully agree with a further observation that Brooking J made in Jarvie at 91:

“There is no reason why, in a strong enough case, the necessary substantial prejudice [to the defendant] could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question.”

(emphasis in original)

And see [33], [36]-[40].

92    Haydon involved a subpoena issued in criminal proceedings, as did the cases referred to in the passage cited above. Those observations must necessarily be considered in light of that, for the reasons explained above at [65].

93    The applicant emphasised two aspects of that passage. First, that each case must be decided on its own facts. That is self-evident. Second, this is not a case where there is some other material that exists in relation to a matter which would stand to prove a particular allegation, even if the credit of a witness was demolished. That submission appears to rely on the reference in the passage cited to the circumstances in Alister. It is plain that reference was not creating some general rule, but rather described the circumstances of that case. That said, it appears from the pleadings although in respect to some events one person is referred to, in respect to others, more than one is subpoenaed to give evidence. I note that a claim for public interest immunity in Haydon was upheld at that stage, where his identity had been revealed to the persons who had the most interest in learning it: see for example, Haydon at [23], [25] and [124]. Haydon was a very specific factual circumstance and illustrates that the relevant public interests and the weight to be attached thereto is dependent on the particular circumstances of the case.

94    In this context it must be recognised that the SOCOMD witnesses have been subpoenaed to give evidence, although under pseudonyms and no doubt with portions in closed court. At that time their evidence of the events will be known, at least to some. That the applicant already knows the identity of these persons and at least the general nature of the anticipated evidence (as inter alia, he possesses some outlines of evidence, or there may be reference in his PAP notice for procedural fairness purposes). That said, as noted earlier, this is different from the nature of the material now sought.

95    Ninth, the applicant’s submission that production of the material sought will not cause any erosion of confidence in the IGADF because it will not be as a result of any want of opposition by the IGADF to that outcome, must be considered in the context of this hearing as described in the preceding paragraphs. It was said by the applicant that the IGADF’s submission as to prejudice which would be caused by the release of the material is misconceived because of the existence of the NSI orders. Leaving aside any issues about necessary amendments to the orders, although the fact that material might be kept securely, or be dealt with in closed court might be seen to address some aspects of concern, it does not address all the public interest issues that arise, including, but not limited to, those referred to below. That it may not be public in the general sense subject to any risk of disclosure, does not cure the issues that arise. Moreover, although tempered because of the matters raised in [48], even discussion of such matters in closed court includes the applicant, the person, who it is assumed, given the respondents are calling the witnesses, the evidence relates.

96    Finally, as I observed in Roberts-Smith (No 14) at [73]:

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.

97    I am constrained in what can be said as to aspects of the claims given the confidential nature of aspects of the evidence. Suffice to say for present purposes, the bases of the claim for public interest immunity identified by the IGADF do arise in the circumstances of this application. Those matters of particular significance in the public interest in favour of the claim, given the nature of such inquiries and the seriousness of the issues being investigated, that the witnesses are current or former ADF personnel, the context in which any evidence was given and the nature of these proceedings, include that the release of the Interview Transcripts (if they exist) would tend to undermine the IGADF. This is in a context where the material sought is in relation to private civil proceedings instituted by the person who it is assumed, given that the respondents are calling these witnesses in respect to a defence of truth, their evidence is said to implicate. The material is sought by that person for his use by him in those proceedings. As explained earlier at [78], this is where such material, if it existed, could not be provided in respect to all witnesses in the hearing.

98    This is also in the context where there were difficulties in breaking down the culture of silence, and actions taken to overcome that in order to conduct the Inquiry. The steps taken to gain the trust of persons, and the consequences that had on the IGADF’s ability to conduct this Inquiry are described by Mr Gaynor. The undermining of the IGADF relates not only to the ADF personnel who gave evidence in this Inquiry, but undermines the IGADF’s ability to conduct further or future inquiries. The importance of the function of the IGADF is readily accepted. It adversely impacts his ability to fulfil his statutory function. In the circumstances of this case, I do not accept the applicant’s submission that there will not be any erosion of confidence in the IGADF because if it is required to produce any material it will not be as a result of any want of opposition by the IGADF to that outcome. Moreover, the applicant’s submission that release of the material would not affect the ability of the IGADF to conduct an inquiry because if a witness is issued with a notice to give evidence before an inquiry, they would turn up and “then it’s a given they’re there to tell the truth”, fails to recognise the culture of silence and the impact that has and how this Inquiry evolved, as succinctly summarised by Mr Gaynor in the passage recited at [18] above. Persons summonsed to give evidence in an inquiry could have no confidence in any assurances given by the IGADF (in a context of a culture of silence) as to the handling of information if it can be provided as a result of a subpoena in civil proceedings, potentially initiated by a person who was also a subject of an inquiry, for use by that person. Trust and confidence of ADF members in the ability of the IGADF to carry out its function would be eroded. This would impact the IGADF’s ability to conduct future investigations.

99    Against that background, in brief confidential reasons I address certain submissions advanced by the applicant in closed court.

100    Those matters have been considered in the balancing process. Balancing all the relevant considerations in this case, I am satisfied that if documents which fall within the terms of the subpoena exist, the balance weighs in favour of non-disclosure on the basis of public interest immunity. On the evidence before me, the IGADF has established his claim for public interest immunity.

Conclusion

101    The IGADF has established its claim for public interest immunity over the documents sought by the subpoena issued by the applicant on 15 July 2021.

Associate:

Dated:    26 November 2021

SCHEDULE OF PARTIES